The Minneapolis Desegregation Settlement Legal Remedies and by xiuliliaofz

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                                       101



     Choice, Equal Protection, and
Metropolitan Integration: The Hope of the
 Minneapolis Desegregation Settlement

                             Myron Orfield1

                 Draft—Please do not cite without permission

Introduction
      The Minneapolis-St.Paul metropolitan area is one of the
whitest and most affluent regions in the country.2 In the state of
Hubert Humphrey, and many other national civil rights leaders,
central city school districts contain many public schools that are
overwhelmingly poor and enroll virtually no White students.3
These schools are segregated both racially and economically from
their    city    and      suburban     counterparts—some       are
“hypersegregated,”4 with nearly 90% Black students and similarly
large concentrations of poverty.5
      The effects of neighborhood segregation and poverty are
greatly magnified in schools, which are much more segregated


     1. Associate Professor of Law, Fesler-Lampert Chair in Urban and Regional
Planning, University of Minnesota and Non-resident Senior Fellow, the Brookings
Institution. This paper was presented at the Public Law Workshop at the
University of Minnesota Law School. The author would like to acknowledge Daria
Roithmayr, Brad Karkkainen, James Ryan, john powell, Gary Orfield, Guy
Charles, Jill Hasday, Ruth Okediji, and Jim Chen for their assistance. I would like
to thank Scott Crain, C. Ann Olson and Nick Wallace for their spectacular research
assistance.
       2      See     U.S.     Census      Bureau,      Summary         File     3,
http://factfinder.census.gov/servlet/CTTable?_caller=geoselect&_ts=144858684577
(last visited _______, 2005). The Minneapolis-St. Paul area is about 86% White,
and slightly more than 5% Black. The median income by household is more than
$54,000—fourth in the nation. Id.
     3. INSTITUTE ON RACE AND POVERTY: RESEARCH, EDUCATION AND ADVOCACY,
SELECTED DEMOGRAPHICS, MINNEAPOLIS PUBLIC ELEMENTARY SCHOOLS, 2003-2004
(2004);
     4. DOUGLAS MASSEY & NANCY DENTON, AMERICAN APARTHEID 10 (1993)
(coining the term “hypersegregation” to describe intense, multidimensional
segregation).
     5. See INSTITUTE ON RACE AND POVERTY, supra note 2.
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102                        Law and Inequality                    [Vol. 24:__
than their neighborhoods. Moreover, while more than two-thirds
of poor white children lived in low-poverty neighborhoods, only
about 25 percent of poor black children and less than 33 percent of
poor Hispanic children lived in low-poverty neighborhoods.6 In
significant part because of this racial and social segregation, only
52 percent of black children and 20 percent of Hispanic children in
Minneapolis will graduate.7 Those that do graduate or obtain an
equivalency degree will likely have tremendous difficulty finding a
path to college or a well-paying job with benefits in the
overwhelmingly white-dominated higher education system and
economy. If this kind of racial and socioeconomic segregation can
happen in the Twin Cities, it can conceivably happen anywhere.
      Fifty years after the U.S. Supreme Court decreed segregated
schools to be intrinsically wrong and later ordered that
desegregation proceed by “meaningful and immediate progress,”8
separate schooling still exists for Whites and minorities.9 While
county-wide educational systems throughout the south effectively
and stably desegregated de jure school districts,10 Northern
districts—contained within fragmented areas with many
districts—were less amenable to stable integration. Minneapolis,
for example,11 engaged in city-only desegregation. Hemmed in by
many independent suburban districts and the Supreme Court’s
decision in Milliken,12 these Northern cities were ordered to

      6 Paul Jargowsky, Poverty and Place 75 (1997).
      7 Minnesota Department of Education, “School Report Card: Minneapolis,”
(2005),                                                                        at
http://education.state.mn.us/ReportCard2005/aypGraduation.do?SCHOOL_NUM=0
00&DISTRICT_NUM=0001&DISTRICT_TYPE=03
     8 Green v. County Sch. Bd. of New Kent County, Va., 391 U.S. 430, 439
(1968).
     9. See e.g., Richard Thompson Ford, Brown’s Ghost, 117 HARV. L. REV. 1305,
1309 (2004) (noting that “green follows White,” meaning integrated schools will
ensure that minorities from low-income communities will not be ignored by the
state if they attend the same middle-class schools as do Whites).
       10 GARY ORFIELD AND SUSAN EATON, DISMANTLING DESEGREGATION: THE
QUIET REVERSAL OF BROWN V. BOARD OF EDUCATION 14-16 (1996).
     11 Booker, See also Myron Orfield, Metropolitics, ch.2 (1997); john powell,
Segregation and Educational Inadequacy in Twin Cities Public Schools, 17
Hamline J.L.P.P. 337 (1996): Myron Orfield, Economic and Racial Polarizatin in
Twin Cities Schools, 17 Hamline JLPP 271 (1996)
     12 Milliken v. Bradley, 418 U.S. 717 (1974).
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2005]       Minneapolis Desegregation Settlement                             103
desegregate their schools without suburban assistance.13 While
the county-wide systems in the south remained stably integrated
for decades, the results in the Twin Cities were consistent with
city-only desegregation plans throughout the country – temporary
integration overwhelmed eventually by white flight.14
      In Minnesota, “separate and much more than equal funding”
of inner-city schools has been the response to the problem of
regional segregation.15 Minnesota increased funding to segregated
schools when it was under the threat of a metropolitan
desegregation suit both in the 1970s under the federal equal
protection clause and in the 1990s under the state’s.16 Since 1995,
state funding formulas have guaranteed that twice as much money
is spent per pupil the most segregated city schools, as compared to
that spent in the wealthiest suburban districts.17
      In both cases, like so many other places in the country, the
state made an implicit bargain with the city schools: “you keep
black and Latino out of our white suburban neighborhoods in
segregated schools in the city and we will pay you to do it.” At the
time, it seemed like a good bargain for whites who were afraid of
black students and central-city education systems which liked the
idea of new resources. But it wasn’t a good deal. It was a deal
that likely destroyed countless lives, deeply hurt city and
suburban neighborhoods where the schools became racially
identifiable, and ultimately the quality of life and, very likely, the
economy of the Twin Cities.
      This new funding, which has not changed the tragedy and
harm caused by the segregation of the inner-city schools, is
unlikely to increase further. It is unlikely that the legislature will
grant more money to inner-city schools when they are increasingly
failing and when property taxes and enrollment are growing
rapidly in the developing, low-property tax, and politically pivotal
suburbs.18


      13 GARY ORFIELD AND SUSAN EATON, DISMANTLING DESEGREGATION: THE
QUIET REVERSAL OF BROWN V. BOARD OF EDUCATION 29-30 (1996).
     14 Myron Orfield, Metropolitics, 44-45 (1997).
   15. MYRON ORFIELD,      METROPOLITICS: A REGIONAL AGENDA FOR COMMUNITY
AND STABILITY 91 (1997).
   16. Id. at 45.
      17 MYRON ORFIELD, METROPOLITICS: A REGIONAL AGENDA FOR COMMUNITY
AND STABILITY    (1997).
   18. See id.
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104                        Law and Inequality                        [Vol. 24:__
     Racially and economically isolated schools are often attacked
by opportunistic politicians who use the pathologies created by
segregation to fuel white resentment against the segregated
schools.19 Segregated schools with high spending and poor test
scores are often used as an affirmation of conservative views of
government and a powerful wedge issue to divide suburban voters,
many of whom live in low wealth school districts which directly
compete with the central cities for aid.20 There has been little or
no politically or practically effective liberal response to these
attacks. But the failure of segregated schools is not necessarily due
to corruption or mismanagement—although both are more likely
to occur in central cities without politically powerful middle-class
families to monitor school quality and performance. It is because,
as decades of national experience have shown, students are
overwhelmingly disadvantaged by the learning environments of
majority poor and segregated schools.21 While racially and
economically isolated schools fail, the few examples socially
integrated schools are meeting expectations and effectively
educating children from diverse racial and social backgrounds.22
     Urban school advocates and political leaders across the
spectrum throughout the nation have also hailed charter schools
as an answer to failing urban schools.23 Charter schools, started in


    19. See, e.g., Doug Grow, Was Day Crude? Or Just Stupid?, STAR TRIB.
(Minneapolis), May 22, 2004, at 1B (quoting the Minnesota Senate Minority Leader
who was recently forced to apologize for “repeatedly and angrily sa[ying] that
Minneapolis and St. Paul schools ‘suck’”)
    20. See id. Suburban and rural leaders often object to the increasing amounts
of aid that go to large, inner-city school districts while test scores and completion
rates fail to improve. See id. These leaders generally fail to mention the manifold
difference between educating students in schools with 90% or more children coming
from poor homes and educating students in affluent or middle class suburbs.
    21. See, e.g., RICHARD D. KAHLENBERG, ALL TOGETHER NOW 47-76 (2001)
(discussing effects of concentrated poverty, parent educational achievement,
“oppositional culture,” and influence of peers on educational attainment among
students).
    22. See Minn. Dep’t of Educ., School Report Card: Lake Harriet Upper (121),
http://education.state.mn.us/ReportCard2005/schoolDistrictInfo.do?SCHOOL_NUM
=121&DISTRICT_NUM=0001&DISTRICT_TYPE=03 (last visited Sept. 11, 2005)
(showing demographics and links to AYP and Basic Skills Testing results). As an
example, Lake Harriet Upper Campus in Southwest Minneapolis has 18%
minorities, 11% free and reduced lunch enrollment, and the school is making
adequate yearly progress and exceeding testing goals for children of all races. See
id.
       23 Much of the rhetoric surrounding charter schools is based on upsetting
the notion of what a “public” school is. See, e.g., U.S. Charter Schools, at
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2005]       Minneapolis Desegregation Settlement                              105
Minnesota as a national model, have failed to yield any better
results, have deepened racial segregation, and appear to be
frequently mismanaged and financially unstable.24
       Schools are more than textbooks, facilities, and dedicated
teachers.     Schools are also social networks which establish
connections and relationships that are important in college,
careers, and general access to opportunity. Poor, segregated
schools cannot expose children to these networks, and the larger
institutions associated with opportunity in society are harder for
students from racially and socially segregated high schools to
access, which hinders the ability of Black and Latino children to
lift themselves out of poverty.25 In addition, even Whites who are
the racial group most segregated in their schooling—segregated
from both low-income students and students of color—are injured
by decreased opportunities to interact with diverse groups in an
increasingly diverse country.26 The trend across the nation is for
increased diversity at all grades, and whites will soon be in the
minority.27
       Like Minneapolis in the 1960s and 1970s, older suburban
school districts are experiencing rapid racial change, increased
segregation, and its attendant harms.28 In several of these school
districts, recent attendance boundary changes have concentrated
minorities in racially identifiable schools in a pattern of conduct


http://www.uscharterschools.org/pub/uscs_docs/o/movement.htm
    24. See ERICA FRANKENBERG & CHUNGMEI LEE, HARVARD CIVIL RIGHTS
PROJECT, CHARTER SCHOOLS AND RACE: A LOST OPPORTUNITY FOR INTEGRATED
EDUCATION                         4,                  7                     (2003),
http://www.civilrightsproject.harvard.edu/research/deseg/CharterSchools.php
(noting that 70% of Black students in charter schools are likely to be in intensely
segregated schools as opposed to 34% in standard public schools; also noting that
the uniqueness of charter schools makes it difficult or impossible to evaluate the
quality of education); see also Scott Abernathy, Charter Schools, Parents, and
Public Schools in Minnesota, 34 CURA REP. 1, 6-7 (2004) (discussing positive and
negative consequences associated with charter schools).
    25. See Joleen Kirschenman & Kathryn Neckerman, We’d Like to Hire them
but,. . .the Meaning of Race for Employers, in THE URBAN UNDERCLASS, supra note
15, at 203, 231 (documenting discrimination by employers in Chicago who turned
down applicants from low-income neighborhoods and high schools more frequently).
    26. See Ford, supra note 7 at 1311 (quoting the reasoning of Justice O’Connor
in Grutter v. Bollinger, 539 U.S. 306 (2003)).
        27 Eric Schmitt, The New Urban Minority, N.Y. Times, May 6, 2001,
(Westlaw) (noting Whites constitute a minority in the largest 100 cities in the
country).
   28. See infra notes 28.See infra notes 235---247 and accompanying text. and
accompanying text.
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106                        Law and Inequality                       [Vol. 24:__
which may violate the federal and state constitutions.29 Suburban
racial change and policies that contribute to White flight and
segregation are hurting these communities by creating identifiably
“White” schools and “Nonwhite” schools, thereby encouraging the
spatial separation of Whites and minorities not only in schools but
also in suburban neighborhoods.30
      More segregation is not inevitable though.          The legal
response has been largely halted in the federal courts, as they
have essentially “dismantled” desegregation remedies and allowed
school districts to return to segregated schooling.31 Yet important
federal remedies remain relevant to the setting of attendence
boundaries in newly diverse, older suburbs.
      Perhaps more importantly, civil rights plaintiffs’ lawyers
have shifted their tactics to state courts. Sheff v. O’Neill, a state
case filed in Connecticut in 1989, is the leading case advocating
desegregation through state constitutional law.32 Local attorneys
and the Minneapolis NAACP filed a similar suit in 1995 to require
the state of Minnesota to desegregate Minneapolis’s troubled
schools with neighboring suburban districts.33 A settlement arose
in 1999 that pushed the state towards creating a solution and
provide opportunity for poor children and children of color to
attend middle-income schools.34 The Choice is Yours Program
(“CIY”), created by the settlement, made space for 2,000 low-
income Minneapolis children from poor neighborhoods to attend
suburban schools over four years.35
      Early experiences in the program are positive and the


    29. See, e.g., The Bloomington Public Schools: Middle School Boundaries,
http://www.bloomington.k12.mn.us/distinfo/reports/Middleschoolboundaries.html
and http://www.bloomington.k12.mn.us/distinfo/reports/MiddleschoolPro_Con.html
(last visited Sept. 11, 2005).
    30. Recent evidence shows that real estate agents, in violation of federal law,
systematically steer Whites toward White areas in the suburbs and Blacks toward
Black areas of the suburbs. See LAWRENCE A. WINANS & CHRISTY L. SNOW, FAIR
HOUSING AUDIT: A COMMUNITY AUDIT TESTING FOR RACIAL BIAS IN RENTAL
HOUSING IN THE CITIES OF BLOOMINGTON, BURNSVILLE, AND ST. CLOUD 12-21
(1997).
    31. See infra notes 31.See infra notes 386---390 and accompanying text. and
accompanying text.
    32. Sheff v. O’Neill, 678 A.2d 1267 (Conn. 1996).
    33. See infra note 151 and accompanying text.
    34. See infra notes 183-189 and accompanying text.
    35. See West Metro Education Program, The Choice is Yours,
http://www.wmep.net/choice.html (last visited Aug. 10, 2005) (explaining CIY in
detail for parents and children).
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2005]       Minneapolis Desegregation Settlement                             107
legislature, on a bipartisan basis, recently continued CIY after the
settlement expired.36 The parents of the CIY children say the
schools are safer and stronger educationally, all this despite long
bus rides and the ever-present problem of racism by whites
unaccustomed to black and Latino students. Moreover, fewer than
20% of students enrolling in a suburban school through the
program elected to return to the Minneapolis School District
(MSD).37 This article argues that, in order to combat desegregation
in Minneapolis, this program should be extended and expanded to
operate in conjunction with a stronger regional approach to
affordable housing.
      This article will discuss the barriers to integration that have
been created since Brown v. Board of Education38 and the
relevance that struggles from the 1970s and 1980s have for the
increased segregation in the Twin Cities and around the country
today.39 The article details the legal structure that has been
created in Minnesota to address segregation,40 state equal
protection lawsuits,41 and desirable outcomes and needed
reforms.42 I support a slightly different position than some recent
commentators by noting that racial integration is a required
element to improving our schools and cities—economic class
cannot effectively serve as a proxy for the benefit of increased
cross-cultural interaction.
      The article concludes by showing that comprehensive state
regional integration can be achieved if sound, regional strategies
are used to discourage White flight by creating low-poverty, high-
achieving schools throughout the region.43 New research from the
Institute on Race and Poverty (“IRP”) shows that, far from
encouraging White flight, as city-only desegregation does,
metropolitan-wide school desegregation helps to create stably
integrated schools and residential neighborhoods.44            These
findings have ramifications for the future administration of CIY


   36. Allie Shah, School-choice Plan Extended, STAR TRIB. (Minneapolis), Jan. 8,
2004, at 1B (summarizing the achievements of the first two years of the program).
   37. ELISABETH A. PALMER, THE CHOICE IS YOURS AFTER TWO YEARS: AN
EVALUATION 18 (2003).
   38. 347 U.S. 483, 495 (1954) (finding segregated schooling unconstitutional).
   39. See infra Part B.1.
   40. See infra Part D.
   41. See infra Part B.2.
   42. See infra Part II.D.
   43. See infra Part III.D., E.
   44. See infra part III.E.
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108                        Law and Inequality           [Vol. 24:__
and future discussions on the crisis in U.S. public schools. With a
strong choice program permitting low-income minority families to
enter middle-class suburban schools and a much more targeted
low-income housing program reinforcing integration of those
schools, there is no reason why an area as White and affluent as
the Twin Cities cannot become a fully and stably integrated
region.
      Parents and students, understanding all the options, don’t
choose segregated schooling and its attendant disadvantages—the
overwhelming interest in CIY demonstrates as much. Moreover, it
is ultimately politically if not practically untenable to spend twice
the suburban average in funding on schools of concentrated
poverty without achievement results. In theory and in practice, a
transportation voucher and a seat in a middle-class suburban
school costs less and provides more opportunity, while contributing
to residential stability. Furthermore, creating and maintaining
cross-cultural relationships is as important as ever in a society
that is increasingly diverse and is only served well through
desegregated schools.
      All of these considerations give rise to a moral as well as a
legal obligation for overwhelmingly White and middle-class
schools to allow space for children of all backgrounds in their
schools and to share their resources and experience to help
educate the state’s poorest children. More funding is not enough
to meet that obligation: fifty years after the initial decree in
Brown, civil rights leaders have proved themselves prophetic in
arguing that segregated schools are not equal schools, even if you
spend twice as much as affluent white schools.


I. History and Demographic Change of Minnesota School
    Segregation: From Minneapolis to the Inner Suburbs

A. How Segregation Happens
    Segregation and its socioeconomic consequences were carved
into the nation’s landscapes and psyches by the century of
discrimination that followed slavery. A century after the Civil
War, the Kerner Commission reported to the nation in 1968 of the
conditions igniting hundreds of urban riots. It said of the racial
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2005]       Minneapolis Desegregation Settlement                             109
ghetto: “White institutions created it, white institutions maintain
it, and white society condones it.”45 School segregation arises out
of institutions that affect both schools and housing because quality
education is a significant factor influencing parents’ choice of
neighborhood.
     Even after overt racial discrimination became illegal during
the second half of the 1900s, housing, zoning, and school policies
persist in protecting segregation. Public officials recognize that
these policies, abetted by local government fragmentation, can be
used to shield private decisions that sometimes include race-based
motivations.     Thus, to accept as “natural” the policies and
practices that maintain segregation, and the ongoing dynamics
they perpetuate, overlooks both discrimination’s history and the
chance still to “walk the talk” of equal access to opportunity for all
races and ethnicities.
     Pervasive housing discrimination by private actors helped to
create and currently maintains poor, minority neighborhoods.46
Until at least the end of World War II, physical violence, racial
zoning, and discriminatory real estate practices kept blacks tightly
confined in ghetto areas and out of white areas.47 In many cities,
white property owners attached restrictive covenants to deeds that
forbade blacks from buying homes in their neighborhoods.48 Real
estate agencies engaged in a variety of discriminatory practices,
including racial steering of blacks and whites away from each
other and blockbusting, which involves selling a few homes in a
white neighborhood to black tenants, buying neighboring homes at
lower prices from panicked white homeowners, and then selling
the homes to middle-income blacks at a premium.49

45
   United States Kerner Comm’n, REPORT OF THE NATIONAL
ADVISORY COMMISSION ON CIVIL DISORDERS 2 (1968), quoted in
Meredith Lee Bryant, Combating School Resegregation through Housing: A Need for
a Reconceptualization of American Democracy and the Rights it Protects, in IN
PURSUIT OF A DREAM DEFERRED: LINKING HOUSING AND
EDUCATION POLICY 49, 51 (john powell, Gavin Kearney, & Vina Kay,
eds., 2001).

   46. DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID 12-14
(1993).
   47. Id. at 36-37.
   48. Id. Racially restrictive covenants were declared unconstitutional in the
1940s. Shelley v. Kramer, 334 U.S. 1, 13 (1948).
   49. See MASSEY & DENTON, supra note 46, at 38.
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110                        Law and Inequality                     [Vol. 24:__
      To this day, blacks and Latinos at all income levels are
discriminated against by real estate agents, who show them only a
small subset of the market and steer whites away from
communities with people of color.50 Mortgage lenders also
systematically lend less mortgage money to blacks and Latinos
compared to whites of comparable income and background.51
These patterns of housing discrimination and resegregation do not
stop at central city borders but also affect large parts of suburbia.
A recent study of metropolitan Boston showed that nearly half of
black homebuyers were concentrated in only 7 of 126
communities.52
    The resegregation of urban neighborhoods is a complex process
that contributes substantially to the isolation of poor minorities.
When Black or Latino residents move to a new neighborhood that
is integrated or very white, white demand for housing declines.53
This occurs first in households with children and later for the
broader middle-class.54 In a housing market where American
households change housing locations on average every six years,
black and Latino members of the middle class are not, by




    50. See MARGERY AUSTIN TURNER ET AL., URBAN INST., DISCRIMINATION IN
METROPOLITAN HOUSING MARKETS 3-1 to 3-19, 6-1 to 6-13 (2002), available at
http://www.huduser.org/       Publications/pdf/Phase1_Report.pdf    (summarizing
discrimination data from 2000); JOHN YINGER, CLOSED DOORS, OPPORTUNITIES
LOST 51-61 (1995) (examining racial and ethnic steering phenomena); see generally
George C. Galster, Racial Steering in Urban Housing Markets: A Review of Audit
Evidence, 18 REV. BLACK POL. ECON 105 (1990) (same).
    51. See John Yinger, Cash in Your Face: The Cost of Racial and Ethnic
Discrimination in Housing, 42 J. URB. ECON. 339, 340 (1997) (providing research
based on Home Mortgage Disclosure Act data finding that discrimination in
housing and financing markets costs blacks and Hispanics, on average, more than
$3,000 whether or not they actually encounter discrimination); YINGER, supra note
50, at 69-70 (1995) (analyzing HMDA data and finding stark racial differences in
lending policy, even when controlling for differences in lenders and individual
economic characteristics of the borrower).
    52. GUY STUART, THE CIVIL RIGHTS PROJECT, HARVARD UNIV., SEGREGATION IN
THE BOSTON METROPOLITAN AREA AT THE END OF THE 20TH CENTURY (2000),
available                                                                      at
http://www.civilrightsproject.harvard.edu/research/metro/housing_boston.php
(referring to evidence presented in the report’s unpaginated executive summary).
Additionally, white suburbanites are not shown integrated markets. TURNER ET.
AL, supra note 50, at 6-1.
       53 See MASSEY & DENTON, supra note __, at 96.
      54 MYRON ORFIELD, AMERICAN METROPOLITICS: THE NEW SUBURBAN
REALITY 11 (2002).
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2005]           Minneapolis Desegregation Settlement                           111
themselves, capable of sustaining a middle-class housing market.55
When white middle-class families withdraw, the reality of supply
and demand will lower prices.56 When the price of housing falls,
low-income minorities move into the housing left behind.57
Businesses and jobs, seeing this disinvestment by the broader
middle class, soon follow, taking with them a portion of the tax
base.58
    Racial change in schools is often a precursor to change in the
housing market. In most cases when schools become more black
and Latino they become poorer and within a short span the
neighborhood follows suit.59      Once the minority share in a
community school increases to a threshold level (perhaps 10 to 20
percent), racial transition accelerates until minority percentages
reach very high levels (greater than 80 percent).60
    A study by the Institute of Race and Poverty (IRP) found
striking evidence of resegregation in some of the largest
metropolitan areas in the United States.61 An analysis of 15 large
metro regions between 1980 and 2000 found that a majority of


       55 Id.
       56 Id.
       57 Id.
       58 The pattern of resegregation, flight and tipping is complex. See George
Galster et al., Identifying Neighborhood Thresholds: An Empirical Exploration, 11
HOUSING POL'Y DEBATE 701 (2000); Roberto Quericia & George Galster, Threshold
Effects and Neighborhood Change, 20 J. PLAN. EDUC. & RES. 146 (2000); George
Galster et. al., The Fortune of Poor Neighborhoods, 39 URB. AFF. REV. 205 (2003).
Some have argued that the "invasion-succession" model may be less applicable in
contexts involving Hispanic and Asian residents. See David Fasenfest et. al, Living
Together: A New Look At Racial And Ethnic Integration In Metropolitan
Neighborhoods, LIVING CENSUS SERIES (Brookings Inst. Ctr. on Urban & Metro.
Policy,     Washington,      D.C.)(2004),     Apr.     2004,     at      15,     at
http://www.brookings.edu/metro/ publications/20040428 _fasenfest.htm.
       59 Id. at 9-15.
       60 MYRON ORFIELD, METROPOLITICS: A REGIONAL AGENDA FOR COMMUNITY
AND   STABILITY 43-54 (1997). Change occurs fastest at levels of 20 percent to 50
percent and proceeds in most cases until schools are highly segregated. ORFIELD,
supra note 54 at 10.
      61 Myron Orfield and Tom Luce, Inst. on Race & Poverty, Minority
Suburbanization and Racial Change: Stable Integration, Neighborhood Transition
and the Need for Regional Approaches, (May 5, 2005).
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112                           Law and Inequality                    [Vol. 24:__
blacks and Latinos now live in suburban cities.62 IRP found that
many neighborhoods which at one point in time appeared to be
integrated were actually in a period of racial transition.63 Many of
these neighborhoods experienced racial transition only if the
nonwhite population exceeded 20 to 30 percent.64
    Census data also shows that integrated census tracts which
had a black population percentage in the mid-thirties in 1980 were
more likely to make the transition to predominantly black during
the next twenty years than they were to remain integrated.65
Resegregation is not inevitable, but integrated areas with a
majority of black residents tend to become more black over time.66
Communities that have practiced “managed integration” with a
series of pro-integrative financial incentives, careful oversight of
real estate practices, and using marketing strategies geared to
maintaining the housing demand of whites when evidence of
resegregation appeared, have shown frequent success in
maintaining social and economic integration for generations.67
    Despite evidence that discrimination plays a large role in
residential segregation,68 conventional wisdom holds that patterns


      62 Id. at 1.
      63 Id.
      64 Id.
      65 Id.
      66   Lynette Rawlings et. al, Race and Residence: Prospects for Stable
Neighborhood Integration, 3 NEIGHBORHOOD CHANGE IN URB. AM. (Urban Inst.,
Washington,          D.C.),     March     2004,      at      4-5,      8,       at
http://www.urban.org/template.cfm?Template=/TaggedContent/ViewPublication.cf
m&PublicationID=8817&NavMenuID=95.
       67 ORFIELD, supra note 54, at 125-26.
68
    See, e.g., MARGERY AUSTIN TURNER ET AL., URBAN INST., DISCRIMINATION IN
METROPOLITAN HOUSING MARKETS 3-1 to 3-19, 6-1 to 6-13 (2002), available at
http://www.urban.org/UploadedPDF/410821_Phase1_Report.pdf (“In 2000, African
American renters were significantly more likely to be denied information about
available housing units than comparable white renters.”); see also John Yinger,
Cash in Your Face: The Cost of Racial and Ethnic Discrimination in Housing, 42 J.
URB. ECON. 339 (1997) (research based on Home Mortgage Disclosure Act data
finding that discrimination in housing and financing markets costs blacks and
Hispanics, on average, more than $3,000 whether or not they actually encounter
discrimination); JOHN YINGER, CLOSED DOORS, OPPORTUNITIES LOST 69 (1995)
(analysis of HMDA data resulting from the finding stark racial differences in
lending policy, even controlling for differences in lender policy and individual
economic characteristics of the borrower);
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2005]        Minneapolis Desegregation Settlement                                113
of segregation are simply the result of individual preferences. The
Supreme Court in Freeman v. Pitts69 exemplified this view by
finding that a pattern of segregation was the result of private
choices, approvingly citing a lower court's reliance on a study
which it implied showed that the preferences of black and Latinos
for 50/50 integrated neighborhoods and whites’ being
uncomfortable with more than a 10 percent black and Latino
population make segregation inevitable.70        Courts and legal
commentators have cited this finding as fact, and it has cast a
huge shadow over the law and, hence, the landscape of reform.
However, the study’s authors have recently written that the
court's analysis was inadequate and that significant and
increasing evidence shows the ability of blacks and whites to live
together on a long-term stable basis, particularly when a conscious
integration plan is in place.71
    The forces that work to create resegregation, as described
above, are certainly complex, but there is little question that
discrimination plays at least some role in maintaining residential
segregation. Because of the wide-spread use of neighborhood
schooling, residential segregation is then translated into school
segregation.72 The next section describes how the segregation of
minorities by race and income has such a devastating effect on
their life prospects.

      B.The Consequences of Segregation

    Segregated schools harm children. They harm schools,
communities, and entire metropolitan regions. Segregated schools
mirror a region’s severely segregated residential patterns,
concentrating poverty, magnifying its harms, and isolating those
most needing opportunity from the social structures, jobs, and
education that offer it.


       69 503 U.S. 467 (1992).
70 Id. at 495.
      71 Reynolds Farley et al., The Residential Preferences of Blacks and Whites:
A Four-Metropolis Analysis, 8 HOUS. POLICY DEBATE 763, 794 (1997). The district
court relied on an earlier study of Detroit by Reynolds Farley. Id. at 771-73. (citing
Reynolds Farley, et al. Chocolate City, Vanilla Suburbs: Will the Trend Towards
Racially Separate Communities Continue?, 7 SOC. SCI. RESEARCH 319 (1978))
      72 Richard Kahlenberg, All Together Now 147-50 (2004).
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114                        Law and Inequality                     [Vol. 24:__

    1. Segregated Schools Hurt Kids

    More than three-quarters of the difference in academic
achievement among students is explained by the socioeconomic
status of their peers, as a recent comprehensive study of hundreds
of the nation’s secondary schools confirmed.73 Not only do racially
and economically segregated schools hurt children, they harm
disproportionate proportions of minority children simply because
they are minorities.

     a. Concentrated Poverty Hurts Kids
     “The percentage of poor children in a school is an extremely
strong predictor of inequality in educational outcomes....”74 As
“fifty years of sociological data have made clear: being born into a
poor family places students at risk, but to be assigned then to a
school with a high concentration of poverty poses a second,
independent disadvantage that poor children attending middle-
class schools do not face.”75 The harms of economically segregated
schools disproportionately fall on nonwhite children because of
their skin color, for the reason that residential segregation permits
most poor white children nevertheless to live and be educated in
middle-class settings.
     Because of segregation by race and poverty, poor Latino and
black children are 2.3 times76 more likely than poor white students

      73
         Russell W. Rumberger & Gregory J. Palardy, Does Resegregation
Matter? The Impact of Social Composition on Academic Achievement in Southern High
Schools, in SCHOOL RESEGREGATION: MUST THE SOUTH TURN
BACK?127, 135, 137 (John Charles Boger & Gary Orfield, eds. 2005)
(national, longitudinal study of eighth through twelfth graders).
74 Gary Orfield, Metropolitan School Desegregation: Impacts on Metropolitan

Society in IN PURSUIT OF A DREAM DEFERRED: LINKING HOUSING AND
EDUCATION POLICY 121, 141 (john powell, Gavin Kearney, & Vina Kay, eds.,
2001), citing Gary Orfield & ___ Reardon ___ (1993).
      (O:141, citing Orfield and Reardon 1993)
      75   Richard Kahlenberg, ALL TOGETHER NOW: CREATING MIDDLE-
CLASS SCHOOLS THROUGH PUBLIC SCHOOL CHOICE 25 (2001).
      76   Russell W. Rumberger & Gregory J. Palardy, Does Resegregation Matter?
The Impact of Social Composition on Academic Achievement in Southern High
Schools, in SCHOOL RESEGREGATION: MUST THE SOUTH TURN BACK?127,
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2005]         Minneapolis Desegregation Settlement                              115
to attend schools of concentrated poverty, cut off from meaningful
exposure to middle-class culture.77 In contrast, because they are
white, 4 out of 5 poor white children attend schools with
meaningful middle-class enrollments.78
    Although poor students have, on average, lower math test
scores than do non-poor students, all children do better in middle
class schools, and all children do worse in schools of concentrated
poverty.79
    Among the harms of attending poor schools is the risk of being
poor as an adult. When studies control for individual achievement
and family background, they still find that “attending a school
with high concentrations of poverty increases the chances of adult
poverty by a factor of between three and four compared with
attending a low-poverty school.”80 Other harms of economically
segregated schools (and neighborhoods) include the harms
associated with racially segregated schools, below, and with
dropping out of school.81 On average, high school “dropouts are far
more likely to be unemployed, in prison, and living in poverty.”82


127-128 (John Charles Boger & Gary Orfield, eds. 2005) (19 percent for white
children; 44 percent for black and Latino children).
77 Russell W. Rumberger & Gregory J. Palardy, Does Resegregation Matter? The

Impact of Social Composition on Academic Achievement in Southern High Schools,
in SCHOOL RESEGREGATION: MUST THE SOUTH TURN BACK?127, 127-128
(John Charles Boger & Gary Orfield, eds. 2005). In addition to the racially
disproportionate burden on nonwhite children of attending poor schools, the rate of
individual poverty is 2.5 times higher among nonwhite children. Id. at 127.

78Russell W. Rumberger & Gregory J. Palardy, Does Resegregation Matter? The
Impact of Social Composition on Academic Achievement in Southern High Schools,
in SCHOOL RESEGREGATION: MUST THE SOUTH TURN BACK?127, 127-128
(John Charles Boger & Gary Orfield, eds. 2005) (81 percent of white children attend
middle-class schools). In addition to the racially disproportionate burden on
nonwhite children of attending poor schools, the rate of individual poverty is 2.5
times higher among nonwhite children. Id. at 127.
      79   Russell W. Rumberger & Gregory J. Palardy, Does Resegregation Matter?
The Impact of Social Composition on Academic Achievement in Southern High
Schools, in SCHOOL RESEGREGATION: MUST THE SOUTH TURN BACK? 128
(John Charles Boger & Gary Orfield, eds. 2005).
      80   Richard Kahlenberg, ALL TOGETHER NOW: CREATING MIDDLE-
CLASS SCHOOLS THROUGH PUBLIC SCHOOL CHOICE 31 (2001).
      81   Gary Orfield et al, Losing Our Future: How Minority Youth are Being Left
Behind by the Graduation Rate Crisis, 3 (Executive Summary, 2004), at
www.civilrightsproject.harvard.edu/research/dropouts/LosingFuture_Executive.pdf
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116                         Law and Inequality                      [Vol. 24:__
    Schools of concentrated poverty offer fewer resources, weaker
educational preparation, and “substantially lower achievement
levels.” 83 Compounded by racial isolation, segregated schools
prevent access to the social contacts and cultural familiarity
“necessary for career and educational advancement,” especially for
black children.84 In short, students in segregated schools “are
‘deprived of the most effective educational resources contained in
the schools: those brought by other children as the result of their
home environment.’”85

     b. Racial Segregation Hurts Kids

    While the harms of segregated schools stem largely from the
challenges associated with concentrated poverty, racially
segregated schools additionally isolate children who must function
in a multi-cultural society from ongoing interactions that teach
those competencies. Segregation deprives children of middle class
cultures that model and support hopeful futures, and that offer
social networks to information and opportunity.
    Racially segregated schools tend to be overcrowded, staffed by
larger shares of uncertified teachers, have low expectations, and
limited facilities.86 In addition, nonwhite segregated schools “often


(visited Nov. 2005).

82Gary Orfield et al, Losing Our Future: How Minority Youth are Being Left Behind
by the Graduation Rate Crisis, 1 (Executive Summary, 2004), at
www.civilrightsproject.harvard.edu/research/dropouts/LosingFuture_Executive.pdf
(visited Nov. 2005).
      83   Jacinta Ma & Michael Kurlander, The Future of Race-Conscious Policies in
K-12 Public Schools, in , in SCHOOL RESEGREGATION: MUST THE SOUTH
TURN BACK? 240, 248-49 (John Charles Boger & Gary Orfield, eds. 2005).
      84   Jacinta Ma & Michael Kurlander, The Future of Race-Conscious Policies in
K-12 Public Schools, in , in SCHOOL RESEGREGATION: MUST THE SOUTH
TURN BACK? 240, 248-49 (John Charles Boger & Gary Orfield, eds. 2005).
85Richard Kahlenberg, ALL TOGETHER NOW: CREATING MIDDLE-CLASS
SCHOOLS THROUGH PUBLIC SCHOOL CHOICE 24 (2001), quoting James
Colemen’s testimony before the Senate Select Committee on Equal Educational
Opportunity, Report: Toward Equal Educational Opportunity, 92 Cong., 2d Sess.
(Government Printing Office, 1972).
      86   U.S. Department of Education, GREAT EXPECTATIONS: REFORMING
URBAN        HIGH      SCHOOLS—AN      EDUCATION       FORUM      WITH     URBAN
EDUCATORS AND LEADERS (2000).
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2005]          Minneapolis Desegregation Settlement                               117
transmit lower expectations to minority students and offer a
narrower range of educational and job-related options.”87 Thus,
studies have found, for example, that the jobs that black students
from racially segregated schools obtained were lower paying and
more racially isolated than the jobs obtained by whites.88 Ghetto
schools too often do not encourage students “to develop the levels
of self-esteem or the styles of presentation which employers
perceive as evidence of capacity or ability.”89
    Segregated schools also deprive nonwhite students of exposure
to a sufficiently strong success culture to support them in breaking
free from the oppositional culture of many peers. Children coming
from deeply disadvantaged families, particularly impoverished
black students, too often are surrounded by “oppositional” cultures
at home, in their segregated neighborhoods—and, tragically, at
school, if they attend segregated schools. These cultures deride
and punish individuals seeking to succeed in the dominant
culture.90 The intense pressure not to give in to what is seen as a
“white” educational and social system can weigh heavily on black
students who wish to succeed at school.91
    This oppositional culture perpetuates segregation and its
harms. It stems from sets of beliefs involving a victimhood from
discrimination that is believed to be permanent and


      87   Michael A Boozer, et al., Race and School Quality Since Brown v. Board of
Education, 1992 Brookings Papers Econ. Activity (Microeconomics), citing Marvin
Dawkins & Jomills Braddock, The Continuing Significance of Desegregation: School
Racial Composition and African American Inclusion in American Society, 63 J.
NEGRO EDUC. 394 (1994); Janet Ward Schofield, Review of Research on School
Desegregation’s Impact on Elementary and Secondary School Students, in
HANDBOOK OF RESEARCH ON MULTICULTURAL EDUCATION 597 (James
Banks & Cherry McGee Banks, eds. 1995).
88Michael Boozer, et al., Race and School Quality Since Brown v. Board of
Education, 1992 Brookings Papers Econ. Activity (Microeconomics), Brief as
Amicus Curiae in Support of Defendants-Appellees, 14, Comfort v. Lynn Sch.
Committee, No. 03-2415 (U.S. Ct. App., 1st Cir. 2004), at
www.civilrightsproject.harvard.edu/policy/legal_docs/ComfortVLynn_brief.pdf
(visited Oct. 2005).
      89   William Julius Wilson, THE TRULY DISADVANTAGED 103 (1987).
      90   Case studies vividly relate this intense peer pressure, and its effects. See,
e.g., Ron Suskind, A HOPE IN THE UNSEEN (1999); Alex Kotlowitz, THERE ARE
NO CHILDREN HERE (1991).
      91     See, e.g., Signithia Fordham & John Ogbu, Black Students’ School
Success: Coping with the Burden of “Acting White,” 18 URB. REV. 176 (1986).
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118                        Law and Inequality                  [Vol. 24:__
institutionalized.92 Tragically, oppositional culture among black
students discourages academic accomplishment “regardless of
income level or class.”93 This can perpetuate negative social
networks;94 therefore integration is valuable in offering “social
networks and interpersonal skills that in turn may provide access,
information, contact, and sponsorship.”95
    Indeed, even disadvantaged students who are committed to
succeeding found they “lacked the knowledge or access necessary
to implement a plan of action.”96 The racially integrated school
environment offers these ingredients for success, and provides
“alternative role models and opportunities as well as affection and
validation.”97

    2. Segregation Hurts Twin Cities Kids and Schools

    The Twin Cities region is severely segregated by class and
race, and districts such as Minneapolis are dangerously segregated
as a result. The acutely segregated schools in Minneapolis are


      92   Terea Wasonga & Dana Christman, Perceptions and Construction of
Meanings of Urban High School Experiences Among African American University
Students: A Focus Group Approach, 35 EDUC. & URB. SOC. 181, 181 (2003),
citing
      93   Terea Wasonga & Dana Christman, Perceptions and Construction of
Meanings of Urban High School Experiences Among African American University
Students: A Focus Group Approach, 35 EDUC. & URB. SOC. 181, 182 (2003),
citing
      94   Terea Wasonga & Dana Christman, Perceptions and Construction of
Meanings of Urban High School Experiences Among African American University
Students: A Focus Group Approach, 35 EDUC. & URB. SOC. 181, 182 (2003),
citing
      95   Terea Wasonga & Dana Christman, Perceptions and Construction of
Meanings of Urban High School Experiences Among African American University
Students: A Focus Group Approach, 35 EDUC. & URB. SOC. 181, 183 (2003),
citing
      96   Terea Wasonga & Dana Christman, Perceptions and Construction of
Meanings of Urban High School Experiences Among African American University
Students: A Focus Group Approach, 35 EDUC. & URB. SOC. 181, 198 (2003).
      97   Terea Wasonga & Dana Christman, Perceptions and Construction of
Meanings of Urban High School Experiences Among African American University
Students: A Focus Group Approach, 35 EDUC. & URB. SOC. 181, 198 (2003).
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2005]          Minneapolis Desegregation Settlement                              119
crushed by poverty enrollments of 80 to nearly 100 percent. That
gives students not opportunity, but a culture of intergenerational
poverty and its attendant challenges.

     a. Twin Cities Schools are Severely Segregated

    The Twin Cities metro region has one of the nation’s lowest
poverty rates, 6.7 percent in 2000. While poverty is borne
disproportionately by the central cities, at 16.4 percent versus the
suburbs’ 4.0 percent,98 school segregation is entirely out of
proportion even to that disparity: two-thirds of students in
Minneapolis Public Schools receive free and reduced-price
lunches,99 and many Minneapolis schools enroll essentially no
middle-class students.100
    By 2003, 46 percent of reporting Minneapolis schools were
terribly segregated, with enrollments 81-100 percent nonwhite.101
Sixty-eight percent of Minneapolis students presently are on
free/reduced price lunch.102 This concentration of poverty is
extreme in the national context and is especially so within the
Twin Cities regional context.        Minneapolis makes the list
(although barely) of the largest one hundred school districts in the



      98    Institute on Race and Poverty [IRP], Minority Suburbanization, Stable
Integration, and Economic Opportunity in Fifteen Metropolitan Regions, draft
report to the Detroit Branch, NAACP, (June 2005), Table A3. For a preliminary
summary and links to the project’s 250 maps, see Minority Suburbanization and
Racial Change: Stable Integration, Neighborhood Transition, and the Need for
Regional       Approaches     [“Minority    Suburbanization      “]   (May      2005),
www.irpumn.org/website/projects/index.php?strWebAction=project_detail&intProje
ctID=15 (visited Oct. 2005).
99A student is eligible for free lunch if her household has an income at or below 130
percent of federal poverty guidelines. During the 2001-2002 school year, a student
from a four-person household would be eligible if household income did not exceed
$22,945. Food and Nutrition Service Child Nutrition Programs—Income Eligibility
Guidelines, 66 Fed. Reg. 15827-29 (Mar. 21, 2001),
www.fns.usda.gov/cnd/governance/notices/iegs/IEGs01-02.pdf.
      100   See Institute on Race & Poverty, Twin Cities Demographics.
      101   NCES 2002-03 full cite.
      102   Minnesota Department of Education, “School Report Card: Minneapolis”
(2005),
http://education.state.mn.us/ReportCard2005/schoolDistrictInfo.do?SCHOOL_NUM
=000&DISTRICT_NUM=0001&DISTRICT_TYPE=03 (visited Oct. 2005).
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120                         Law and Inequality                      [Vol. 24:__
nation, which includes districts in the nation’s most troubled
cities.
     Economic segregation in Minneapolis schools exceeds that of
districts like Detroit, Miami, and Mobile, Alabama, and matches
that of districts like Baltimore.103 Looking within the Twin Cities
metro region reveals more vividly not only the extent of economic
segregation, but the opportunities for reversing it.104 Minneapolis’s
poverty average is 40 percentage points higher than Bloomington
and 61 points higher than Edina.105
     When poverty burdens become too large in a school,
enrollments can change rapidly until concentrated poverty is
extreme. in schools puts neighborhoods at risk of changing quickly
as the middle class goes elsewhere in search of “good” schools.106
School segregation and residential segregation thus are inexorably
linked.
     Thus, if concentrated race and poverty create a poor learning
environment, one solution is the deconcentration of race and
poverty. Over the years, integration of classrooms by race and
class has shown to be one of the most effective methods for raising
student achievement. The next section illustrates some of the
gains students have made by attending integrated schools.


      C.What are the benefits of integration

    Students benefit from economically and racially integrated
schools. And so do neighborhoods and metro regions. Anything
short of integration does not compensate for what’s missing in
segregated schools: a large share of students who bring to school
the high expectations and aspirations and access to opportunity
networks associated with living in middle-class families.

      103   NCES 2003, Table 9.
      104   Data for each district can be accessed through the index at Minnesota
Department         of      Education,    School      Report      Card       (2005),
http://education.state.mn.us/ReportCard2005/index.do (visited Oct. 2005).
       105 Data for each district can be accessed through the index at Minnesota
Department         of      Education,    School      Report      Card       (2005),
http://education.state.mn.us/ReportCard2005/index.do (visited Oct. 2005).
      106    Myron Orfield, METROPOLITICS: A REGIONAL AGENDA FOR
COMMUNITY AND STABILITY 39 (1997).
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2005]           Minneapolis Desegregation Settlement                            121

        1. Integrated Schools Help Students

     Since James Coleman’s seminal 1966 report, empirical
research has continued to show “that a student’s achievement is
highly related to characteristics of other students in the school.”107
As the Supreme Court confirmed in 2003, “numerous studies show
that student body diversity promotes learning outcomes, and
better prepares students for an increasingly diverse workforce and
society, and better prepares them as professionals.”108 The reasons
for this range from the effects of a student’s peers on aspirations
and attitudes toward education, to the attention policy makers
give to middle- and upper-class parents and schools.

      a. Social and Opportunity Benefits

    For both white and black students, interracial contact in
primary and secondary school makes it more likely that they will
live, work, and attend college in more integrated settings.109 For
black students, the interracial contact helps reverse perpetual
segregation, in part because desegregated schools permit “access
to high-status institutions and the powerful social networks within
them.”110




       107   Russell W. Rumberger & Gregory J. Palardy, Does Resegregation Matter?
The Impact of Social Composition on Academic Achievement in Southern High
Schools, in SCHOOL RESEGREGATION: MUST THE SOUTH TURN BACK? 128
(John Charles Boger & Gary Orfield, eds. 2005).
108 Grutter v. Bollinger, __ U.S. ___, ___, 123 S.Ct. 2325, 2340 (2003).
109 Amy Stuart Wells & Robert L. Crain, Perpetuation Theory and the Long-Term

Effects of School Desegregation, 64 REV. ED. RES. 531 (1994) (reviewing 21
research studies), cited in Brief as Amicus Curiae in Support of Defendants-
Appellees, 15, Comfort v. Lynn Sch. Committee, No. 03-2415 (U.S. Ct. App., 1st Cir.
2004), at
www.civilrightsproject.harvard.edu/policy/legal_docs/ComfortVLynn_brief.pdf
(visited Oct. 2005).
110 Amy Stuart Wells & Robert L. Crain, Perpetuation Theory and the Long-Term

Effects of School Desegregation, 64 REV. ED. RES. 531, 552, 531 (1994) (reviewing
21 research studies), cited in Brief as Amicus Curiae in Support of Defendants-
Appellees, 15, Comfort v. Lynn Sch. Committee, No. 03-2415 (U.S. Ct. App., 1st Cir.
2004), at
www.civilrightsproject.harvard.edu/policy/legal_docs/ComfortVLynn_brief.pdf
(visited Oct. 2005).
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122                        Law and Inequality                       [Vol. 24:__
    For both black and, especially, white students, integrated
classrooms improve the stability of interracial friendships,111 and
make adult interracial friendships more likely.112 Desegregated
schools decrease racial prejudice among students and increase
comfort around people with different backgrounds.113 These
outcomes flow from the interactions between the races that,
consistent with the widely accepted114 intergroup contact theory,
enhance understanding and empathy, and reduce stereotyping.
    Integrated schools are important settings for intergroup
contact because students in that setting are to be accorded equal
status; there are authorities to facilitate the contact; students are
engaged in common activities and goals; and personal contacts
displace stereotyping.115 A similar process can occur when parents
from diverse backgrounds work together on behalf of their
children’s schools. These are important aspects of promoting
democratic values and bringing member of our society together.
    The most recent research confirms that both white and black
children who attend desegregated schools are “‘less likely to


111 Maureen Hallinan & Richard Williams, The Stability of Students’ Interracial

Friendships, 52 AM. SOC. REV. 653 (1987), in Brief as Amicus Curiae in Support
of Defendants-Appellees, 19, Comfort v. Lynn Sch. Committee, No. 03-2415 (U.S.
Ct. App., 1st Cir. 2004), at
www.civilrightsproject.harvard.edu/policy/legal_docs/ComfortVLynn_brief.pdf
(visited Oct. 2005).
      112   Richard Kahlenberg, ALL TOGETHER NOW: CREATING MIDDLE-
CLASS SCHOOLS THROUGH PUBLIC SCHOOL CHOICE 44 (2001), citing.
113 Amy Stuart Wells, et al., How Desegregation changed Us: The Effects of Racially

Mixed Schools on Students and Society (Mar.. 2004),
http://www.tc.columbia.edu/news/article.htm?id=4774&tid=118, part of IN
SEARCH OF BROWN (forthcoming 2005); Brief as Amicus Curiae in Support of
Defendants-Appellees, 17-19, Comfort v. Lynn Sch. Committee, No. 03-2415 (U.S.
Ct. App., 1st Cir. 2004), at
www.civilrightsproject.harvard.edu/policy/legal_docs/ComfortVLynn_brief.pdf
(visited Oct. 2005).
114 Brief as Amicus Curiae in Support of Defendants-Appellees, 8, Comfort v. Lynn

Sch. Committee, No. 03-2415 (U.S. Ct. App., 1st Cir. 2004), at
www.civilrightsproject.harvard.edu/policy/legal_docs/ComfortVLynn_brief.pdf
(visited Oct. 2005). See Christopher Ellison & Daniel A Powers, The Contact
Hypothesis and Racial Attitudes Among Black Americans, 75 Soc. Sci. Q. 385
(1994); Lee Sigelman & Susan Welch, The Contact Hypothesis Revisited: Black-
White Interaction and Positive Racial Attitudes, 71 Soc. Forces 781 (1993).
115 Brief as Amicus Curiae in Support of Defendants-Appellees, 8-9,Comfort v.

Lynn Sch. Committee, No. 03-2415 (U.S. Ct. App., 1st Cir. 2004), at
www.civilrightsproject.harvard.edu/policy/legal_docs/ComfortVLynn_brief.pdf
(visited Oct. 2005).
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2005]         Minneapolis Desegregation Settlement                           123
express negative views about members of the other race,’” and
black graduates “are ‘less likely than graduates of segregated
schools to believe that anti-Black discrimination is wide-
spread.’”116 In addition, many studies already had confirmed that
these students were “more likely to attend integrated colleges, live
in integrated neighborhoods as adults, and send their children to
integrated schools.”117

    b. Academic Attainment and Achievement

    Without reducing the academic results for middle class and
white children,118 integrated schools improve outcomes for poor
children and nonwhite children. Among the important reasons are
that “ambition is contagious”: the drive to achieve is greatly fueled
when disadvantaged children attend school with middle-class
students.119
    Attainment. Black students who attend racially120 integrated
and economically121 integrated schools complete more years of
schooling than those who attend segregated schools. This is true
for post-secondary education attainment, too. College attendance
rates are higher among black students attending racially
integrated schools, and especially for blacks in northern states,
than for students attending segregated schools.122 For example,


      116   Richard Kahlenberg, ALL TOGETHER NOW: CREATING MIDDLE-
CLASS SCHOOLS THROUGH PUBLIC SCHOOL CHOICE 45 (2001).
      117   Richard Kahlenberg, ALL TOGETHER NOW: CREATING MIDDLE-
CLASS SCHOOLS THROUGH PUBLIC SCHOOL CHOICE 44 (2001), citing.
      118   See studies cited in Richard Kahlenberg, ALL TOGETHER NOW:
CREATING MIDDLE-CLASS SCHOOLS THROUGH PUBLIC SCHOOL CHOICE
pages(2001).
      119   See, e.g., Richard Rothstein, WHAT DO WE KNOW ABOUT DECLINING
(OR RISING) STUDENT ACHIEVEMENT? 129-30 (1997).
120 Michael A Boozer, et al., Race and School Quality Since Brown v. Board of

Education, 1992 Brookings Papers Econ. Activity (Microeconomics) 269, cited in
Brief as Amicus Curiae in Support of Defendants-Appellees, Comfort v. Lynn Sch.
Committee, 12-13, No. 03-2415 (U.S. Ct. App., 1st Cir. 2004), at
www.civilrightsproject.harvard.edu/policy/legal_docs/ComfortVLynn_brief.pdf
(visited Oct. 2005).
      121   See studies cited in Richard Kahlenberg, ALL TOGETHER NOW:
CREATING MIDDLE-CLASS SCHOOLS THROUGH PUBLIC SCHOOL CHOICE
28-30 (2001).
      122   Robert Crain & Rita Mahard, School Racial Composition and Black
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124                         Law and Inequality                      [Vol. 24:__
research on desegregation achieved by school choice in St. Louis
found that attending a racially integrated school correlated with
twice the rate of college enrollment compared with those among
the 12,000 students studied who attended segregated schools.123
    Achievement. “[M]inority students who attend more racially
integrated schools show increased academic achievement and
progress, which are typically measured by scores on achievement
tests.”124 For black students, the achievement gains are especially
consistent when their desegregated school experience began in the
primary grades.125 Test scores for Latino students also are higher
on average when they attend desegregated schools.126 In addition,
studies consistently find achievement gains for students attending



College Attendance and Achievement Test Performance, 51 SOC. EDUC. 81 (1978);
see also Michael A Boozer, et al., Race and School Quality Since Brown v. Board of
Education, 1992 Brookings Papers Econ. Activity (Microeconomics) 269.
      123   Goodwin Liu & William Taylor, “School Choice to Achieve Desegregation,”
(unpublished paper) (on file with author).
124 Based on social science research surveys reviewing four decades of research:

Janet Ward Schofield, Maximizing the Benefits of Student Diversity: Lessons from
School Desegregation Research, in DIVERSITY CHALLENGED: EVIDENCE ON
THE IMPACT OF AFFIRMATIVE ACTION 99 (Gary Orfield & Michael
Kurlaender, eds. 2001); Janet Ward Schofield, Review of Research on School
Desegregation’s Impact on Elementary and Secondary School Students, in
HANDBOOK OF RESEARCH ON MULTICULTURAL EDUCATION 597 (James
Banks & Cherry McGee Banks, eds. 1995); Robert Crain & Rita Mahard, The Effect
of Research Methodology on Desegregation Achievement Studies: A Meta-Analysis,
88 AM. J. SOC. 839 (1983); Robert Crain, School Integration and the Academic
Achievement of Negroes, 44 SOC. EDUC. 1 (1971). Cited in Brief as Amicus Curiae
in Support of Defendants-Appellees, 9-10, Comfort v. Lynn Sch. Committee, No. 03-
2415 (U.S. Ct. App., 1st Cir. 2004), at
www.civilrightsproject.harvard.edu/policy/legal_docs/ComfortVLynn_brief.pdf
(visited Oct. 2005).
125 Robert Crain & Rita Mahard, The Effect of Research Methodology on

Desegregation Achievement Studies: A Meta-Analysis, 88 AM. J. SOC. 839 (1983),
cited in Brief as Amicus Curiae in Support of Defendants-Appellees, 11, Comfort v.
Lynn Sch. Committee, No. 03-2415 (U.S. Ct. App., 1st Cir. 2004), at
www.civilrightsproject.harvard.edu/policy/legal_docs/ComfortVLynn_brief.pdf
(visited Oct. 2005).
126 Janet Ward Schofield, Review of Research on School Desegregation’s Impact on

Elementary and Secondary School Students, in HANDBOOK OF RESEARCH ON
MULTICULTURAL EDUCATION 597 (James Banks & Cherry McGee Banks, eds.
1995), cited in Brief as Amicus Curiae in Support of Defendants-Appellees, 11,
Comfort v. Lynn Sch. Committee, No. 03-2415 (U.S. Ct. App., 1st Cir. 2004), at
www.civilrightsproject.harvard.edu/policy/legal_docs/ComfortVLynn_brief.pdf
(visited Oct. 2005).
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2005]          Minneapolis Desegregation Settlement                             125
economically diverse schools, as contrasted with those attending
schools of concentrated poverty.127

      c.     Aspirations and Occupational Attainment

    By attending desegregated middle-class schools, poor and
nonwhite students obtain equal access to cultures of high
educational and occupational expectations often taken for granted
by the middle and upper classes. Desegregated middle-class
schools also permit access to the social networks associated with
opportunity. The schools with the ingredients for pursuing “the
American dream” are those where most students come from homes
providing these experiences and connections—homes that are
middle class.128
    As the Supreme Court has found, the benefits of diversity “are
not theoretical but real, as major American businesses have made
clear that the skills needed in today’s increasingly global
marketplace can only be developed through exposure to widely
diverse people, cultures, ideas, and viewpoints.”129 For black
students, examples of the occupational benefits of attending
nonsegregated school include higher occupational aspirations and
access to professions from which minorities have historically been
excluded.130



       127   See studies cited in Richard Kahlenberg, ALL TOGETHER NOW:
CREATING MIDDLE-CLASS SCHOOLS THROUGH PUBLIC SCHOOL CHOICE
26-28 (2001).
128Brief as Amicus Curiae in Support of Defendants-Appellees, 12, Comfort v. Lynn
Sch. Committee, No. 03-2415 (U.S. Ct. App., 1st Cir. 2004), at
www.civilrightsproject.harvard.edu/policy/legal_docs/ComfortVLynn_brief.pdf
(visited Oct. 2005).
       2, citing Marvin Dawkins & Jomills Braddock, The Continuing Significance
of Desegregation: School Racial Composition and African American Inclusion in
American Society, 63 J. NEGRO EDUC. 394 (1994); Janet Ward Schofield, Review
of Research on School Desegregation’s Impact on Elementary and Secondary School
Students, in HANDBOOK OF RESEARCH ON MULTICULTURAL EDUCATION
597 (James Banks & Cherry McGee Banks, eds. 1995).
  Grutter v. Bollinger, __ U.S. ___, ___, 123 S.Ct. 2325, 2340 (2003).
129

       130   Janet Ward Schofield, Maximizing the Benefits of Student Diversity:
Lessons from School Desegregation Research, in DIVERSITY CHALLENGED:
EVIDENCE ON THE IMPACT OF AFFIRMATIVE ACTION 100 (Gary Orfield &
Michal Kurlaender, eds. 2001), cited in Lynn Brief at 13.
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126                         Law and Inequality                      [Vol. 24:__
    In addition, both white and black students tend to have higher
educational aspirations if they have cross-race friendships, as
contrasted with students who had only same-race friendships.131
Finally, as to the overall benefits of middle-class schools, they “will
raise the achievement and improve the life chances of the poor
without reducing the achievement of the middle class . . .
further[ing] the secondary goal of promoting a vibrant democracy
and unity amid diversity.”132

      D.        The Failure of City-only Integration Plans Compared
                to the Success of Metropolitan Plans

     Analysis of neighborhood demographic data show that during
the period from 1980 to 2000 metropolitan areas that employed
busing on large geographic scales (county or region-level
programs) showed better or more stably integrated housing market
outcomes than areas that did not have busing.133 Metropolitan
areas with large-scale busing showed larger increases in the
number of residents living in integrated settings than non-busing
metros, and integrated neighborhoods were less likely to become
segregated in busing metros. Both metropolitan areas with metro
busing and those without showed similar patterns during the 20-
year period—the percentages of Whites and Blacks living in
integrated settings134 increased while the percentages of Hispanics


      131   Maureen Hallinan & Richard Williams, Students’ Characteristics and the
Peer Influence Process, 63 SOC. EDUC. 122 (1990), in Lynn Brief at 19.
132 Richard Kahlenberg, ALL TOGETHER NOW: CREATING MIDDLE-CLASS

SCHOOLS THROUGH PUBLIC SCHOOL CHOICE 25 (2001).
   133. See Myron Orfield & Tom Luce, Minority Suburbanization and Racial
Change,          May          5,         2005          (unpublished          paper),
http://www.irpumn.org/uls/resources/projects/MinoritySubn_050605wMAPS.pdf.
The following information in this section is derived from the statistics reported in
this paper. See id.
   134. The definitions for the neighborhood types are: Predominately White –
tracts where both the Black and Hispanic shares of the population are less than
10%; Predominately Black – Black share greater than 50% and Hispanic share less
than 10%; Predominately Hispanic – Hispanic share greater than 50% and Black
share less than 10%; Black and Hispanic – Black share greater than 10%, Hispanic
share greater than 10% and White share less than 40%; White/Black Integrated –
Black share greater than 10% and less than 50%, Hispanic share less than 10%;
White/Hispanic Integrated – Hispanic share greater than 10% and less than 50%,
Black share less than 10 %; W/B/H Integrated – Black share greater than 10%,
Hispanic share greater than 10% and White share greater than 40%. Black and
White shares are for non-Hispanic Black and non-Hispanic White population.
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2005]       Minneapolis Desegregation Settlement                         127
in integrated settings declined. However, the integrative trends
were significantly stronger in the metropolitan areas with busing.
In these places, the percentage of the total population living in
integrated settings increased by 17 points, from 25% to 42%. In
the other 85 metropolitan areas, the total percentage increased
only 9 points, from 26% to 35%.
      IRP’s finding with respect to the success of metropolitan
desegregation in stemming White flight affirms research from the
1980s about the power of metro-wide integration. Diana Pearce
noted that school desegregation—if it is metropolitan in nature—
can have an unexpected effect: integration of living patterns and
the prevention of White flight or “disenrollment.”135       These
findings were based on the wave of integration that came
subsequent to Brown and continued court oversight of school
integration. Other researchers, as a corollary, have studied a
similar timeframe to note that metro-wide school desegregation is
also the most effective method for increasing Black
achievement.136      While their findings indicated that all
desegregation plans increased achievement, metropolitan
desegregation had the greatest effect on the achievement of Black
students.137 Moreover, for children who desegregated at earlier
ages—starting with kindergarten—the effect on their achievement
increased dramatically.138
      These studies prove that desegregation and an integrated
learning environment can be powerful forces in raising
achievement at all levels. The value of these studies is to prove
that desegregation that occurs across the metropolitan region is
effective in stabilizing neighborhoods and in reducing the
education gap.      An expanded CIY program, combined with
targeted low-income housing programs, can conceivably reduce
and eliminate segregation in an area as White as the Twin Cities.


      E. On the Ground in Minneapolis




  135. DIANA PEARCE, BREAKING DOWN BARRIERS: NEW EVIDENCE ON THE IMPACT
OF METROPOLITAN SCHOOL DESEGREGATION OF HOUSING PATTERNS 3 (1980).
  136. ROBERT CRAIN AND RITA MAHARD, DESEGREGATION PLANS THAT RAISE
BLACK ACHIEVEMENT: A REVIEW OF THE RESEARCH (1982).
  137. Id.
  138. Id.
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128                          Law and Inequality                     [Vol. 24:__
      Trends in Minneapolis schools duplicate the trends in
national segregation statistics, showing that schools segregated by
race are invariably poor schools as well. Before the litigation in
Booker v. Special School District No. 1—Minneapolis’s first
desegregation lawsuit—the Minneapolis School District (MSD)
was 85 percent White.139 Now, after the subsequent shift of the
White middle-class to suburban enclaves, the MSD is 73 percent
non-White and has 68 percent of its students receiving free or
reduced lunch.140
    The severely segregated Minneapolis School District graduates
only 55 percent of its students.141 Yet more than 91 percent of
adults in the Twin Cities region have at least a high school
diploma, and more than 33 percent have at least a college
degree.142 In contrast to the 55-percent graduation rate in
Minneapolis, adjacent school districts graduate 88 to 100 percent
of their students.143
     Academic attainment and achievement declined as economic
and racial segregation become more severe, as illustrated by the
Minneapolis Schools. As the poverty concentration in the district


   139. 351 F. Supp. 799, 802 (D. Minn. 1972).
   140. Minn.     Dept.     of  Educ.,   School   Report     Card:    Minneapolis,
http://education.state.mn.us/ReportCard2005/schoolDistrictInfo.do?SCHOOL_NUM
=000&DISTRICT_NUM=0001&DISTRICT_TYPE=03 (last visited Nov. 1, 2005).
141 Minnesota Department of Education, “School Report Card: Minneapolis” (2005),

http://education.state.mn.us/ReportCard2005/schoolDistrictInfo.do?SCHOOL_NUM
=000&DISTRICT_NUM=0001&DISTRICT_TYPE=03                    (visited Oct. 2005).
“According to the most recent [Minneapolis] district data, the city's seven high
schools had a 78 percent graduation rate.         However, add in the contract
alternatives, such as the Center School, 2421 Bloomington Ave. S.; The City, Inc.,
1315 12th Ave. N.; and others, and the graduation rate drops to 54.5 percent.” Scott
Russell, “Schools Become a Big Issue in Mayor’s Race,” DOWNTOWN JOURNAL
(Mpls., Oct. 3, 2005), http://www.skywaynews.net/articles/
2005/09/26/news/news02.txt (visited Oct. 2005).
         142   In 2000, the 13-county Twin Cities region’s percentage was 90.6;
nationwide, it was 80.4 percent. U.S. Census Bureaus data for 2000.
         143   Minnesota’s state-wide graduation rate in 2005 was 89 percent.
Minnesota Department of Education, School Report Card: Statewide (2005),
http://education.state.mn.us/ReportCard2005/
         schoolDistrictInfo.do?SCHOOL_NUM=000&DISTRICT_NUM=9999&DISTR
ICT_TYPE=99 (visited Oct. 2005). Data for individual districts and schools are
accessible from the index at Minnesota Department of Education, School Report
Card (2005), http://education.state.mn.us/ReportCard2005/index.do (visited Oct.
2005).
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2005]         Minneapolis Desegregation Settlement                             129
increased from 46 to 68 percent, graduation rates dropped from 67
to 55 percent (Table 1-#).144
    With the exception of schools in the southwest lakes area of
the city, families are not choosing most Minneapolis schools.
Minneapolis enrollments have dropped sharply, declining 18
percent in the new millennium, from 48,000 to 39,913 students.145
(In contrast, during the four years from 2000 to 2004, public school
enrollments declined only 2.1 percent statewide.146) In addition,
for every student who transfers into the Minneapolis School
District, six transfer out, by far the largest negative ratio in the
state.147
      These disparities are also becoming apparent in suburban
districts surrounding Minneapolis. Robbinsdale, a nearby inner-
ring suburb and the largest recipient of CIY suburban transfer
students, is 64% White and has a free and reduced lunch
population of 32 percent.148 Several other suburban districts, such
as Richfield and Bloomington have also had substantial racial
change. It is important to note that these districts have also had
white flight, but were never under a court order to desegregate.
      Adjacent to Minneapolis is the Edina School District, which
enrolls 88% White students, with a 6% free or reduced lunch
enrollment.149 Parents take notice of these demographics and the


      144   Data for each district can be accessed through the index at Minnesota
Department         of      Education,    School      Report       Card       (2005),
http://education.state.mn.us/ReportCard2005/index.do (visited Oct. 2005).
145 HAZEL REINHARDT, A REPORT TO THE MINNEAPOLIS SCHOOL DISTRICT AS PART
OF THE FACILITIES UTILIZATION PLAN: AN ANALYSIS OF ENROLLMENT AND
ENROLLMENT           PROJECTIONS        26       (2004),        available     at
http://www.mpls.k12.mn.us/sites/78254f07-8bd2-4334-a7cb-fca95ff9dcb9/uploads/
demography_report.pdf.

146 Declines were especially large in Ramsey and Hennepin counties. McMurry,

Enrollment Declines, at 3. During those four years, sixteen of 87 counties
experienced enrollment growth, and they were mostly in Twin Cities suburban
counties, especially Scott, Sherburne, Wright, Dakota, and Carver. McMurry,
Enrollment Declines, at 3.
147 Martha McMurry, Minnesota State Demographic Center, Enrollment Declines

are Widespread Since 2000, page (Population Notes, OSD-05-118)(Apr. 2005),
www.demography.state.mn.us/PopNotes/Enrollment%20Declines.pdf (visited Oct.
2005).
   148. Minn.     Dept.    of  Educ.,   School   Report     Card:   Robbinsdale,
http://education.state.mn.us/ReportCard2005/schoolDistrictInfo.do?SCHOOL_NUM
=000&DISTRICT_NUM=0281&DISTRICT_TYPE=01 (last visited Nov. 1, 2005).
   149. Id.
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130                        Law and Inequality                  [Vol. 24:__
quality of a school district as evidenced by its test scores. Transfer
statistics are one indication of this: Edina has a 4 to 1 ratio of
students transferring in to their district versus students leaving
the district, compared to 6 to 1 outflow in Minneapolis.150

      II. Legal Responses to Segregation in Minnesota

      School segregation of this magnitude matters because the
racially discriminatory effects are unfair to children. The
mechanisms that brought about this state of affairs can be
explained to some degree, but there are no easy solutions as to
how to achieve integration and share the opportunity of middle-
class schools with children of all races. The following sections
attempt to describe the history of school desegregation in
Minneapolis and the demographic change in both Minneapolis and
its neighboring suburbs.

        A. Booker v. Special School District No. 1: Desegregation in
           Minneapolis and Re-segregation in the Suburbs
     The story of segregation in Minneapolis schools and the
resultant White-flight from the city-only desegregation plan begins
with Booker v. Special School District No. 1. Because the court’s
desegregation remedies were only contained within the
Minneapolis city boundaries, middle-class Whites could easily flee
the city and those remedies to suburban jurisdictions with their
neighborhood schools.151 Lifting of the desegregation order in the
1980s, coupled with a return to neighborhood schools, had the
predictable effect of re-segregating Minneapolis’s schools.152
Nevertheless, the lessons of Booker remain important because
many of the methods of segregative school policies remain the
same.

        1. Booker’s Impact on School Enrollment in Minneapolis
      Racial discrimination was a fact of life in Minneapolis’s



  150. Minn.       Dept.    of    Educ.,   School     Report      Card: Edina,
http://education.state.mn.us/ReportCard2005/schoolDistrictInfo.do?SCHOOL_NUM
=000&DISTRICT_NUM=0273&DISTRICT_TYPE=01 (last visited Nov. 1, 2005).
See also supra note 37.
  151. See infra Part II.B.1.
  152. See infra Part II.B.1.
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2005]        Minneapolis Desegregation Settlement                               131
public schools throughout the 1950s and 1960s.153 Like many
Northern cities, Minneapolis had segregated neighborhoods that
undoubtedly contributed—and continue to contribute—to creating
segregated schools.154 Desegregation played out in Minneapolis as
it played out across the rest of the nation—against the backdrop of
President Nixon’s anti-busing Southern strategy and the resultant
decimation of federal desegregation remedies by the United States
Supreme Court.155
      The first Supreme Court case to test Northern desegregation
was Keyes v. School District No. 1.156 The Keyes Court held that de
jure racial segregation could be found in a district that had no
history of state-mandated school segregation, as long as the
prerequisite “segregative intent” could be found.157
      Moreover, segregative intent in a substantial part of the
district could be imputed to the district as a whole, providing a
supervising court with the authority to order district-wide relief.158
Denver’s public schools had acted with segregative intent by
making teacher and student assignments based on race, aligning
school attendance boundaries so as to segregate on the basis of
race, and by increasing density in segregated schools, as opposed
to Southern-style desegregation where assignments were explicitly




   153. Cheryl W. Heilman, Booker v. Special School District No. 1: A History of
School Desegregation in Minneapolis, Minnesota, 12 LAW & INEQ. 127, 129 (1993).
   154. See id. at 130 (describing all-white and all-black neighborhoods as
contributing to segregation).
   155. See, e.g., Nathaniel Jones, The Judicial Betrayal of Blacks Again: The
Supreme Court’s Destruction of the Hopes Raised by Brown v. Board of Education,
32 FORDHAM URB. L.J 109, 114-15 (2004) (observing the difficulty of implementing
truly equal education in wake of Supreme Court education jurisprudence); see also
JOHN W. DEAN, THE REHNQUIST CHOICE 47 (2001) (quoting Richard Nixon as
follows: “I don’t care if he’s a Democrat or a Republican . . . he must be against
busing”).
   156. 413 U.S. 189 (1973).
   157. See id. at 211. In Keyes, the plaintiffs had conceded that segregative intent
was a necessary component of finding segregation in a school where de jure legal
separation of the races had not been explicitly enforced by law in the past. See id.
at 198. For this reason, Keyes should not be viewed as being overturned by
Washington v. Davis, as the plaintiffs in Washington conceded that no
discriminatory intent existed; rather, Keyes was modified to the extent that proof of
disparate impact is now insufficient to show a constitutional violation. See
Washington v. Davis, 426 U.S. 229 (1976).
   158. See Keyes, 413 U.S. at 208 (“[W]e hold that a finding of intentionally
segregative school board actions in a meaningful portion of a school system, as in
this case, creates a presumption that other segregated schooling within the system
is not adventitious.”).
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132                        Law and Inequality                        [Vol. 24:__
based on race.159 Keyes begins with the analysis that what is or is
not a segregated school depends on the facts of each case, but also
outlines a number of factors that could establish segregative
intent.160
     Back in Minneapolis, racial separation was encouraged and
intensified by changing attendance boundaries, giving “special
transfers” to White students at their parent’s request, and
permitting White students to opt out of attending minority
schools.161 Two suits by the NAACP forced the District to remedy
segregation, one in the 1970s which led to busing within the city of
Minneapolis and one in the 1990s which led to the creation of CIY.
The 1970s suit relied on federal court oversight, while the 1990s
lawsuits turned to state court remedies after the demise of
desegregative case law in the federal courts. The 1990s cases are
discussed in greater detail later in the article.
     The court in Booker detailed findings of segregation
extensively in its opinion.162 It noted that segregation was
probably starkest in the elementary schools, which tend to be
much smaller than secondary schools.163 Nearly three-quarters of
Whites attended elementary schools with virtually no minorities,
while 55% of Black children attended schools that were more than
30% minority.164 At least three elementary schools had minority
enrollments over 70% while several schools had fewer than six
minority students total.165 Noting that the size and location of
Bethune Elementary “were intended to have the effect of
continuing the pattern of [racial segregation,]” Judge Larson found
that Bethune could only have more obviously been a school for
minorities if the District had written the words “Black school . . .
over the door.”166       Enrollments of minority students in


  159. Keyes, 413 U.S. at 201-02 (listing acts which, when aggregated, convinced
the Court of segregative intent).
  160. Id. at 196 (listing the factors the Court looks for in deciding if a school is
segregated).
  161. Booker v. Special Sch. Dist. No. 1, 351 F. Supp. 799, 804 (D. Minn. 1972);
see also Heilman, supra note 153, at 130. Heilman served as a law clerk to Judge
Larson, who oversaw the Booker-led desegregation, just as the court supervision
was ending. See id. at 127. Her article supplements much of the background for
this narrative where the reported case is silent. See id. at 127.
  162. Booker, 351 F. Supp at 802.
  163. See id.
  164. Id.
  165. Id.
  166. Id. at 803.
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2005]       Minneapolis Desegregation Settlement                              133
Minneapolis’s junior and senior high schools followed similar but
less extreme patterns, due in part because they are generally
fewer in number and have larger enrollments.167
      The Booker court found that the District promoted
segregation by maintaining over-capacity minority schools when
nearly adjacent White schools could easily handle the overflow.168
For example, Washburn High School received additions in 1967 to
deal with being around 600 students over-capacity.169 Nearby
Central High School ran about 600 students under-capacity.170
Washburn’s minority enrollment was less than 3% Black, while
Central enrolled about 23% Black students.171 The District offered
no reasoning for this decision during the trial.172
      Similarly, the District encouraged segregation through the
construction of new buildings.173 Judge Larson found that the
District built smaller-than-average White schools in White
neighborhoods that were adjacent to Black neighborhoods.174 The
nearby minority communities received larger-than-average
elementary schools.175 As an example, Page Elementary—an all
white school—built in 1958, could hold 300 students and was the
fifth smallest elementary in the district; nearby Field—a largely
Black school—could handle nearly 600 students.176 To Judge
Larson, the implications were obvious: Minneapolis intended to
concentrate as many minority students as possible in each “black
school,” while permitting Whites to remain in segregated-White
schools.177
      Boundary changes also permitted the MSD to perpetuate
segregation.    Changing attendance boundaries permitted the
District to shift minority students from overwhelmingly


   167. Id. (stating similar statistics as those of the secondary schools).
   168. Id. at 803-04.
   169. Id. at 803.
   170. Id.
171. Id. at 803.
   172. Id.
   173. Id. at 803-04 (concluding this from statistics expounded upon later).
   174. Id. at 803.
   175. Id. (noting that schools in Black neighborhoods were built bigger than
schools built in White neighborhoods, which were smaller).
   176. Id. at 804. In an attempt to ward off the looming desegregation lawsuit,
the District combined Field with Hale Elementary School, which was 98% White.
Judge Larson noted that the community resistance to this plan was “vehement.”
Id. at 806.
   177. Id. at 806 (coming to this conclusion after seeing statistics dealing with
different schools’ capacity issues).
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134                        Law and Inequality                     [Vol. 24:__
overcrowded schools to only slightly overcrowded schools.178 For
example, the District instituted boundary changes in 1968 to
maintain Washburn and Southwest high schools as segregated
Black environments.179 In addition, the District permitted one-
way flight out of its attendance boundaries by granting special
transfers from largely high-minority schools.180         Finally, the
creation of “optional” attendance zones on the boundaries of
minority neighborhoods permitted Whites to opt out of attending
increasingly minority schools.181
      Judge Larson eventually ceded control of the district after
several years of progress on a desegregation plan. He did so in
reliance that the State would assume responsibility for monitoring
and enforcing a rule to maintain integrated schools.182 The
supervision was based on the 15 percent rule, which stated that
each school in a district could have no more than 15 percent
minority students than the minority average of the district.183
Each district was viewed on its own terms there was no inter-
district operation of the rule. As might be expected, it produced
integration for a time, but also stimulated white flight.184
      Desegregation was for a time successful, such that ten years
after the desegregation process began in earnest, racially
identifiable schools arguably did not exist in Minneapolis.
Reporter Gregor Pinney noted: “[n]o longer does the city have
minority schools in the center and ‘white schools’ everywhere
else.”185 Dissolution of the federal decree relied primarily on the
oversight of the District, with the State monitoring compliance, for
continuing desegregation.       Despite his decision to give up
jurisdiction over the District, Judge Larson continued to have
doubts about the willingness of a school district to desegregate
without the continued oversight and pressure of a federal judge.186
With the increasingly evident segregation in the metro-area


  178. See id. at 804.
  179. See id.
  180. See id. (finding that race played a role in these special transfers).
  181. See id. (concluding this from the general course of conduct from the
district).
  182. See Heilman, supra note 153, at 171-73.
       183 See Heilman, supra note 153 at 175.
      184 See Heilman, supra note 153 at 170.
  185. Gregor W. Pinney, Desegregation Strips Race Labels Off Schools, STAR TRIB.
(Minneapolis), Aug. 31, 1981, at 1A.
  186. See id. at 172.
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2005]       Minneapolis Desegregation Settlement                               135
schools, Judge Larson’s doubts have proven to be well-founded.
     During the 1980s, with significant in-migration of Blacks and
Latinos after the lifting of federal supervision, Minneapolis’s
schools underwent a sweeping racial transformation. Yet, white
enrollment had fallen to less than 50% by 1989.187 Minneapolis
and St. Paul were in an untenable position as white flight and
minority enrollment increased and as many neighborhood schools
underwent racial transition, white parents and politician stepped
up the call again for neighborhood schools. In 1993, a Black
mayoral contender sought political backing from a largely white
electorate by echoing this call for a return to neighborhood
schools.188 The School Board followed the mayor’s lead, and the
District went back to neighborhood schools in 1995 and many city
schools—already experiencing flight and decreased enrollment by
the middle class—became deeply segregated.189 Sadly, documents
uncovered after the decision reveal that school leaders in
Minneapolis knew in advance that a return to neighborhood
schools and increased funding was doomed to fail.190
     Achievement and graduation in those schools began to
plummet. The district built schools of various sizes in poor
segregated neighborhoods that would be virtually all minority the
day they opened. It added mobile class rooms to the increasingly
white and in-demand schools on the city’s affluent southwest side.
     As the district went through massive racial change in the
1990s, it experienced a catastrophic loss of enrollment clearly


   187. Nat’l Ctr. For Educ. Statistics, U.S. Dep’t of Educ., Common Core of Data,
http://nces.ed.gov/ccd (table on file with author).
   188. Monika Bauerlein, Separate But Equal, CITY PAGES (Minneapolis), Nov. 1,
1995, available at http://www.citypages.com/databank/16/778/article2353.asp.
Proposals to return to neighborhood schooling are sometimes framed in the context
of funding shortfalls, prompting school officials to reduce bus services and school
choice. See Sanjay Bhatt, Seattle Won’t Close Schools, SEATTLE TIMES, May 18,
2005, at A1.
   189. See Bauerlein, supra note 188. Not only did White enrollment decline and
move to the suburbs, but minority suburbanization is increasing among the Black
middle-class, with more than half of the country’s minorities living in the suburbs.
See MYRON ORFIELD & TOM LUCE, MINORITY SUBURBANIZATION AND RACIAL
CHANGE REPORT: STABLE INTEGRATION, NEIGHBORHOOD TRANSITION, AND THE
NEED        FOR      REGIONAL          APPROACHES       (2005),    available      at
http://www.irpumn.org/uls/resources/projects/MinoritySubn_050605wMAPS.pdf.
   190. See KAHLENBERG, supra note 21, at 176. Political leaders in other regions
around the country have also accepted accelerated funding in exchange for the
withdrawal of desegregation suits. See James E. Ryan, Schools, Race, and Money,
109 YALE L.J. 249, 263-64 (1999) (explaining the use of desegregation lawsuits to
extract money from the state for poor schools).
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136                        Law and Inequality                    [Vol. 24:__
related to the pattern of school resegregation.191         As each
neighborhood school would become majority poor and middle-class
wave of white, black, asian, and Latino middle-class households
would move to more stably integrated neighborhoods in the city or
the suburbs. In the few areas with consistent access to magnet
schools designed to maintain racial integration and in the majority
white school areas on the far south side, middle-class white
enrollment grew and housing prices soared.

        2. School Enrollment Today
      After the return to neighborhood schools, at least 15
elementary schools in Minneapolis were virtually all-minority; by
2004, that number rose to nearly 30.192 On the south side, a wave
of Latino emigration transformed elementary schools like
Jefferson and Anderson.193 North Minneapolis elementary schools
like Broadway and Jordan Park were heavily minority, with few or
no White students in many of their grades.194 By 2005, 39
standard public schools out of 65 were more than 75% minority in
a region that was 9% minority.195
      Concomitant with these demographic changes, the poorest
and most racially isolated schools have not closed the achievement
gap. A recent Star Tribune article noting the success of some
Minneapolis and St. Paul schools in statewide testing also
mentioned abysmal test scores in some schools.196 Jordan Park K-
8, for example, saw a decline from 28% to 13% in math test
passing rates.197 Central city schools like these receive the most
state funding because they contain some of the poorest and,
therefore, neediest children.198


      191 Myron Orfield, Metropolitics 92 (1997).
  192. See Institute on Race and Poverty, Twin Cities Demographics, at
http://www.irpumn.org/uls/resources/projects/irppres%2009-12-04.ppt  (slides   2
through 9) (showing pictoral presentation of demographics).
  193. See Institute on Race and Poverty, Twin Cities Demographics, at
http://www.irpumn.org/uls/resources/projects/irppres%2009-12-04.ppt  (slides   2
through 9) (showing pictoral presentation of demographics).
  194. Id.
  195. Id. The alternative schools within the district, which are even more
segregated than the standard schools, are even more segregated.
  196. Norman Draper & Steve Brandt, State’s Schools Meet the Test, STAR TRIB.
(Minneapolis), Apr. 2, 2005, at B1.
  197. Id.
  198. JOHN BIEWEN, Schooling Poor Kids in Minneapolis, in THE FORGOTTEN
FOURTEEN        MILLION,        AMERICAN        RADIOWORKS,      May       1999,
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2005]       Minneapolis Desegregation Settlement                               137
     Examples of specific schools reveal that in certain areas
segregation is even worse than the general, area-wide data
indicates. Hall Elementary School had 350 students in 2001-2002,
313 of which were Black, and now has a 96% enrollment of free or
reduced lunch students.199 Bethune is nearly 100% non-White and
has seen a rapid decline in enrollment from a high of 668
elementary students to 334 in 2003, with a corresponding poverty
rate of 95% free or reduced lunch enrollment.200 These examples
are not atypical, as many of the schools in Near North and South
Minneapolis enrolled similarly high numbers of poor children.201
     There have also been schools in inner-ring suburbs that have
experienced substantial racial change. Robbinsdale’s Northport
Elementary, for example, saw a precipitous decline in White
students and a corresponding increase in Black students.202 Its
minority enrollment was at 27% in 1995, with 340 White children;
in 2003 the school went to 66% minority and 174 White children
enrolled.203




http://americanradioworks.publicradio.org/features/14_million/poor2.shtml      (last
visited Sept. 26, 2005). Inner-city schools receive above-average per pupil
resources, but it cannot be said they receive the highest per pupil expenditures
because some rural districts are, per pupil, very expensive to operate. See, e.g.,
Minn. Dept. of Educ., School Report Card: Red Lake: Report to Taxpayers,
http://education.state.mn.us/ReportCard2005/loadFinanceAction.do?SCHOOL_NU
M=000&DISTRICT_NUM=0038&DISTRICT_TYPE=01 (last visited Oct. 25, 2005)
However, the inner-city districts receive, total, far more resources than any
districts in the state because they have the most students. The state average
hovers around $8,000—almost exactly that of the national average. See NAT’L CTR.
FOR EDUC. STATISTICS, COMMON CORE OF DATA, REVENUES AND EXPENDITURES FOR
PUBLIC ELEMENTARY AND SECONDARY EDUCATION: SCHOOL YEAR 2002-03 10 (April
2005), available at http://nces.ed.gov/pubs2005/2005353.pdf. The Minneapolis-St.
Paul schools receive about $3,000 more. See Minn. Dept. of Educ., School Report
Card:             Minneapolis:           Report           to           Taxpayers,
http://education.state.mn.us/ReportCard2005/loadFinanceAction.do?SCHOOL_NU
M=000&DISTRICT_NUM=0001&DISTRICT_TYPE=03 (last visited Nov. 1, 2005).
  199. See Minn. Dep’t of Educ., supra note 44; see also Minn. Dept. of Educ.,
School               Report               Card:              Hall               El.,
http://education.state.mn.us/ReportCard2005/schoolDistrictInfo.do?SCHOOL_NUM
=287&DISTRICT_NUM=0001&DISTRICT_TYPE=03 (last visited November 6,
2005).
  200. See Minn. Dep’t of Educ., supra note 44. See also Minn. Dept. of Educ.,
supra note 21.
  201. See Institute on Race and Poverty, Twin Cities Demographics, at
http://www.irpumn.org/uls/resources/projects/irppres%2009-12-04.ppt    (slides     2
through 9) (showing pictoral presentation of demographics).
  202. See Minn. Dept. of Educ., supra note 44.
  203. Id.
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138                        Law and Inequality                         [Vol. 24:__
        3. Declining Enrollment and Charter Schools in Minneapolis
      The statistics above tell the story of the rapid racial and
socioeconomic change that Minneapolis experienced after the end
of the Booker court’s supervision.204 Still, change continues to
affect Minneapolis schools. The MSD has lately begun to see steep
drops in enrollment, particularly in the most segregated schools,
and is projecting even further changes. From 49,242 in 1998, the
school district enrolled about 43,397 students in 2003, with part of
the loss going to open enrollment.205 Today, Minneapolis enrolls
just under 40,000 students.206 The state Department of Education
reported that Minneapolis is losing a total of more than 7,500
children to other districts and charter schools and gaining only
1,200 from other areas.207 Minneapolis projects that by 2008
enrollment may drop near 30,000 students—nearly half that of a
decade previous.208
      In some of Minneapolis’s neighborhoods, as the quality and
opportunity associated with their schools has declined, some
students have chosen to attend charter schools.209 Charter schools
were once proposed as a remedy to poorly run inner-city schools,
teaming up parental involvement with less District oversight and



   204. See Institute on Race & Poverty, supra note Error! Bookmark not
defined., slide 22. One statistic indicates the number of preschool children, aged 0
to 4, declined sharply. Id. at slides 19-25. Areas like Minnetonka and Maple Grove
saw double-digit increases in the numbers of young White children in their
jurisdictions. Id. This data should be interpreted carefully and not just attributed
to White flight because other demographic factors could play a role.
   205. NAT’L CTR. FOR EDUC. STATISTICS, COMMON CORE OF DATA, 1987-2002
School Years, http://nces.ed.gov/ccd (table on file with author); see also Minn. Dep’t
of     Educ.,    Academic        Excellence    School     Report      Card     (2005),
http://education.state.mn.us/ReportCard2005/schoolDistrictInfo.do?SCHOOL_NUM
=000&DISTRICT_NUM=0001&DISTRICT_TYPE=03 (last visited Sept. 26, 2005).
       206 Minn. Dep’t of Educ., Academic Excellence School Report Card (2005),
http://education.state.mn.us/ReportCard2005/schoolDistrictInfo.do?SCHOOL_NUM
=000&DISTRICT_NUM=0001&DISTRICT_TYPE=03 (last visited Sept. 26, 2005).
  207. See Minn. Dep’t of Educ., supra note 205.
  208. HAZEL REINHARDT, A REPORT TO THE MINNEAPOLIS SCHOOL DISTRICT AS
PART OF THE FACILITIES UTILIZATION PLAN: AN ANALYSIS OF ENROLLMENT AND
ENROLLMENT           PROJECTIONS         26       (2004),      available      at
http://www.mpls.k12.mn.us/sites/78254f07-8bd2-4334-a7cb-fca95ff9dcb9/uploads/
demography_report.pdf.
  209. Tim Pugmire, Charter School Competition Heats Up in Minneapolis, MINN.
PUB.            RADIO          NEWS,             Nov.         25,          2003,
http://news.minnesota.publicradio.org/features/2003/11/25_pugmire_charter/ (last
visited Sept. 26, 2005).
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2005]        Minneapolis Desegregation Settlement                               139
management.210 Indeed, charters operate independently of the
school district in which they reside and permit parents or their
sponsors to try to create innovative learning strategies.211
Minnesota was the first state to enact charter school legislation
and has seen a relatively large increase in the number of children
attending charter schools. Between 2000 and 2004 alone the
number of children in Minnesota charter schools increased 127%,
or by nearly 8000 students.212 Among Minneapolis residents, the
number of K-12 students attending charters increased to nearly
3500 students in 2003.213 Because of their proximity to urban
neighborhoods with residential segregation, charter schools also
tend to be heavily minority—approximately 53% in 2004—and
poor.214 Many schools within Minneapolis were more than 80%
minority, sometimes nearly 100%.
      Several studies recently commissioned found widespread
failure to practice good accounting practices among Minnesota’s
charter schools.215 In particular, many schools neglected to
adequately divide accounting duties among a sufficient number of
individuals, a measure that increases financial accountability and



   210. See PATRICIA ANDERSON, MINN. OFFICE OF STATE AUDITOR, FINANCIAL
TRENDS OF MINNESOTA SCHOOL DISTRICTS AND CHARTER SCHOOLS: FOR PERIOD
2000         TO       2004,        at        35       (2005),      available       at
http://www.auditor.state.mn.us/reports/gid/2004/schooldistrict/schooldistrict_04_re
port.pdf. A recent report by the state auditor found that many charter schools
have failed due to lack of oversight and poor management. Id. at 35-36. The
Minnesota Department of Education only recently required management training
for leaders in charter schools. Id. at 35-38.
   211. WILLIAM LOWE BOYD ET AL., WHAT REALLY HAPPENED: MINNESOTA’S
EXPERIENCE WITH STATEWIDE PUBLIC SCHOOL CHOICE PROGRAMS 11 (2002). As
charters are independent of the school district, a student attending a charter school
within the city limits of Minneapolis is not considered in the “head count” of the
MSD. We may speak of declining enrollment in the MSD, even if 100% of the
outflow is to charter schools wholly within the city limits.
   212. ANDERSON, supra note 210, at 2, 6, 35-38.
   213. HAZEL REINHARDT, A REPORT TO THE MINNEAPOLIS SCHOOL DISTRICT AS
PART OF THE FACILITIES UTILIZATION PLAN: AN ANALYSIS OF ENROLLMENT AND
ENROLLMENT            PROJECTIONS           26       (2004),      available        at
http://www.mpls.k12.mn.us/sites/78254f07-8bd2-4334-a7cb-fca95ff9dcb9/uploads/
demography_report.pdf.
   214. ANDERSON, supra note 214, at 6; see also Insitute on Race and Poverty,
Charter School Demographics (on file with author).
   215. Matt Entenza, Charter Schools Study 2003, 1, 2-3 (2003) (unpublished
study on file with author). See also Duchesne Paul Drew, Entenza to Call for
Charges in Charter-School Cases, STAR TRIB. (Minneapolis), Mar. 7, 2001, at B3;
Duchesne Paul Drew & Anthony Lonetree, A Call to Act on Charter School Woes,
STAR TRIB. (Minneapolis), Feb. 7, 2001, at A1.
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140                        Law and Inequality                       [Vol. 24:__
helps protect against fraud.216 These studies found limited
segregation of duties in 84% of charter schools in 2002,217
concluding that there was improper assurance that fraud did not
occur in at least one internal operation in over 70% of charter
schools.218     Similarly, Minnesota’s charters schools have
increasingly failed to keep an updated list of General Fixed Assets,
which is an important safeguard against theft.219
      In addition to problems with accounting, Minnesota’s charter
schools have not been in compliance with other oversight
measures. For example, many of the state’s charter schools have
routinely failed to file their audits on time with the Department of
Children, Families, and Learning.220 Opportunities for hiding
financial problems and perpetrating fraud increase without the
transparency provided by audits and access to board meeting
minutes.221
      With Minnesota charter schools getting more than $100
million from the state, the lack of oversight is a serious matter.222
Within Minneapolis and St. Paul, at least eight schools have closed
because of financial mismanagement or ineptitude.223 Closure of
charter schools because of mismanagement or financial failure is
not only a serious problem because of the misuse of public funds,
but because it inevitably leaves hundreds of children stranded in
the middle of their education.224


  216. Entenza, supra note 215, at 2-3. Of the 30 schools that had filed their year
2000 reports by January 24, 2001, 73% had not adopted national accounting
standards designed to prevent excessive control by any one individual over a
school’s spending and record-keeping. Drew & Lonetree, supra note 215, at A1.
The studies indicated that the schools viewed the staff increases necessary to
comply with proper accounting practices as cost prohibitive. Entenza, supra, at 3.
  217. Entenza, supra note 215, at 2.
  218. For example, in 2001, Excel Academy for Higher Learning was found to
have no policy of issuing receipts or other standard method for handling incoming
funds, the school failed to document the amounts of salaries that were paid to
employees, and it lacked a system for obtaining formal approval of expenditures by
individuals with spending authority. Id. at 6-7.
  219. See id. at 4.
  220. See id. at 3.
  221. See Entenza, supra note 215, at 3; see also Draper, supra note 241, at B1.
  222. See James Walsh, Entenza Calls Many Charter Schools Lax, STAR TRIB.
(Minneapolis), Aug. 13, 2004, at B3.
       223 See Institute on Race & Poverty, Chart Schools Presentation, (on file
with author).
  224. See, e.g., Lourdes Medrano Leslie & Anne O’Connor, Closing of School Hits
Hard, STAR TRIB. (Minneapolis), June 1, 2000, at A1.
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2005]        Minneapolis Desegregation Settlement                               141
        4. Effect of Instability in Minneapolis Schools
      In addition to a loss of enrollment due to charter schools and
open enrollment options, the racial change in the wake of Booker
and the return to neighborhood schools played a large role in the
declining enrollment in Minneapolis schools. During the Booker
era of desegregation in Minneapolis, White enrollment in
Minneapolis public schools declined by almost half, reducing the
percentage of Whites in the district by twenty percentage points.225
Middle-class people of color followed this trend of disinvestment
from declining communities, with more than half of their
households moving to the suburbs.226
      At the outer edge of the city, as schools experience rapid
White flight and transition, neighborhoods rapidly lose
population.227 Northside schools like Bethune and Lincoln all saw
rapid declines in enrollment from 1995 to 2003.228 Bethune
elementary is nearly 100% minority and has seen a rapid decline
in enrollment from a high of 668 students in 1997 to a low of 334
in 2003—exactly a 50% loss in enrollment.229 Some schools, such
as the well- integrated Lake Harriet Upper Campus and Barton,
saw an increase in enrollment over the same period.230
      The instability created by declining enrollment causes some
of Minneapolis’s most talented teachers to leave in search of a
district with increasing enrollment.231 Suburban schools with
increasing diversity need the skills teachers from Minneapolis
possess from working with low-income and minority children, and




   225. Heilman, supra note 153, at 169
   226. See Myron Orfield & Tom Luce, Minority Suburbanization and Racial
Change,      at     1      (May     5,     2005)      (unpublished      draft),    at
http://www.irpumn.org/uls/resources/projects/MinoritySubn_050605wMAPS.pdf.
   227. See ORFIELD, supra note ERROR! BOOKMARK NOT DEFINED., at 39-40.
   228. Minn. Dep’t of Educ., School Report Card: Bethune, Lincoln, at
http://education.state.mn.us/ReportCard2005/schoolDistrictInfo.do?SCHOOL_N
UM=107&DISTRICT_NUM=0001&DISTRICT_TYPE=03 and
   229. Id.
   230. Id.
   231. See Steve Brandt, Urban Teacher Exodus Swells, STAR TRIB. (Minneapolis),
Aug. 11, 2005, at A1. Declining enrollment, if severe enough, can lead to school
closures and teacher layoffs. Combined with an already-stressed administration
and lack of attention to teacher needs, the threat of future layoffs has driven some
qualified teachers to seek employment in Bloomington and other nearby districts
with booming enrollment. Id. One teacher noted that in the six years of her
employment with Minneapolis, she had received five layoff notices but had been
hired back each year. Id.
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142                        Law and Inequality                       [Vol. 24:__
thus are in a position to lure Minneapolis teachers away.232 After
their departure and the continuing decline in enrollment, the
school board finds itself in a position of having to close schools
despite vehement local opposition.233 On top of the already-
difficult problems of educating children in schools of concentrated
poverty, the inner-city districts now face insurmountable problems
from declining enrollment and staffing.


        5. Segregation in inner-ring suburbs

     Inner-ring suburban school districts are also undergoing the
same sort of transformation Minneapolis schools experienced a
generation before. Bloomington and Osseo school districts provide
concrete examples of this increasing stratification. Osseo has been
in violation of the state desegregation rules since 1993, but the
state has yet to take action that would correct the problem.234 In
Osseo, more than one-third of the district’s schools are “racially
identifiable,”235 as the Minnesota desegregation rules define
them.236 Osseo’s Park Center Senior High is more than 55%
minority,237 twenty-six points higher than the district high school
student average.238 Conversely, nearby Maple Grove Senior High
has 8% minority enrollment.239 The spatial separation of Whites
and minorities in the Osseo schools is even starker in the
elementary schools, which are typically smaller schools with
higher racial concentrations.240
     In Osseo, parents fought to keep the status quo, as


   232. Id.
   233. Mary Jane Smetanka, Plan Rekindles Memories of ‘82, STAR TRIB.
(Minneapolis), Feb. 10, 2004, at A8 (noting threat of school closures due to decline
in enrollment); see also Sanjay Bhatt, Draft Plan to List School Closures, SEATTLE
TIMES, Apr. 20, 2005, at B1; John Gehring, Dips in Enrollment Posing Challenges
for Urban Districts, EDUC. WEEK, Mar. 2, 2005.
       234 Myron Orfield, 17 Ham. J. L. & Pub. Pol’y 271, 287 (1996).
  235. See Memorandum from Scott Crain, Research Fellow, University of
Minnesota Law School Institute on Race and Poverty, on Minnesota Public School
Segregation, to Professor Myron Orfield, University of Minnesota Law School (Oct.
2004) (on file with author).
  236. See MINN. R. ch. 3535 subp. 6 (2003).
  237. Crain, supra note 235.
  238. Id.
  239. Id.
  240. Id.
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2005]       Minneapolis Desegregation Settlement                              143
residential segregation within the district was inevitably
translated into school segregation.241 The district now contains
ten racially identifiably schools, out of twenty-seven standard
high, middle, and elementary schools.242       Its total minority
enrollment is 36%, more than 20% higher than neighboring
Wayzata, which is at 14%, barely qualifying Osseo as a racially
isolated district.243
      Contemporaneous to this increasing racial isolation in
Osseo’s schools was a contentious disagreement over the
redrawing of attendance lines in the 1990s. Parents protested and
the superintendent declared that no east-west busing would
occur—the remedy that could conceivably bring Osseo’s schools
into racial balance.244 John Shulman, an attorney for the NAACP
and a participant in the NAACP and Xiong litigation, blamed
board members for orchestrating segregation.245 The Star Tribune
noted that the school plan was reminiscent of highly visible
controversy in Maple Grove, a suburban city at the western edge of
the Osseo school district. That issue involved an attempt to
prevent the building of low-income housing in their community.246
The result of the controversial boundary adjustments was that the
school board chose neighborhood schools over integration, and
Osseo’s schools have become predictably more and more
segregated.247
      Recent boundary adjustments in Bloomington provide
another example of the effect that racial change and neighborhood
schooling have on the segregation of opportunities in suburban
districts. Prior to the fall of 2001, Bloomington’s public schools
included a combination of neighborhood and district-wide schools
from kindergarten to high school.248           Two district-wide



   241. See Norman Draper, Battle of the Borders, STAR TRIB. (Minneapolis), Jan.
29, 2001, at A1 (“Recently, Osseo parents revolted over a plan to turn one school
into an early-education center and another into a kindergarten center . . . parents
were up in arms over what they feared was an effort to redraw school boundaries to
lessen the racial imbalance . . . .”).
   242. Crain, supra note 235.
   243. Id.
   244. See Mike Kaszuba, District Wrestles with Racial Imbalance, STAR TRIB.
(Minneapolis), Oct. 11, 1998, at B1.
   245. Id.
   246. Id. See also Myron Orfield, Metropolitics 127-128 (1997).
   247. See Crain, supra note 247; Myron Orfield, Metropolitics 50 (1997).
   248. See School Board News (Bloomington Pub. Sch., Bloomington, MN), Feb. 9,
1999.
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144                        Law and Inequality                    [Vol. 24:__
“intermediary” schools were used for grades five through eight.249
The school board planned to consolidate the grades into middle
schools so that the children would have fewer transition points as
they progressed to high school, providing stronger school and peer
ties by increasing the amount of time spent in each school.250
      In facts similar to those found in the Supreme Court’s
decision in Columbus v. Penick,251 the district proposed four
attendance boundary plans for the Bloomington middle schools.252
They varied in terms of the segment of the city they captured but
ultimately focused on achieving certain goals: keeping contiguous
boundaries with existing elementary schools, maintaining racial
balances, and increasing the proportion of children within walking
distance of the school they attend.253 Bloomington was out of
compliance with the state desegregation rules, as some other
districts had been since the enactment of the new rules in 1999.254
Opposition from the Bloomington School Board and residents to
the most integrative plan seemed to focus mostly on the time it
would take to bus certain children, and others were troubled by
the fact that the buses would pass by the nearest schools and
proceed to schools farther away.255 Another group of concerned
residents, 250 in all, signed a petition asking the School Board to
not choose a plan that would worsen racial and social


  249. Id.
  250. See id.
      251 Columbus v. Penick, 443   US 449 (1979).
  252. BLOOMINGTON PUB. SCH., TRANSITION REPORTS: PROS AND CONS OF MIDDLE
SCHOOL BOUNDARY OPTIONS A-D, at 1-5, (2000) (on file with author).
  253. See id. at 1-5.
      254 See Myron Orfield, Metropolitics 44 (1997). Bloomington currently has
one racially identifiable elementary school—meaning that the minority enrollment
at the school is 20 percentage points above the district minority enrollment—and
one that is on the cusp of becoming racially identifiable. Compare Minnesota
Department of Education, “School Report Card: Bloomington”, (2005) at
http://education.state.mn.us/ReportCard2005/schoolDistrictInfo.do?SCHOOL_NUM
=000&DISTRICT_NUM=0271&DISTRICT_TYPE=01, with Minnesota Department
of Education, “School Report Card: Valley View Elementary” (2005) at
http://education.state.mn.us/ReportCard2005/schoolDistrictInfo.do?SCHOOL_NUM
=459&DISTRICT_NUM=0271&DISTRICT_TYPE=01 (showing that Valley View
Elementary minority enrollment is more than 20 percentage points above
Bloomington minority average).
  255. See id. at 1-2.
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2005]       Minneapolis Desegregation Settlement                              145
segregation.256 Seventeen residents also testified to the School
Board about the boundaries and the negative impact school
segregation would have on their community.257 The District chose
what was termed “Plan D,” which kept contiguous boundaries with
elementary schools, but did not maintain racial balance in the
three schools.258
     The redistricting in Bloomington may have had the effect of
causing one middle school to rapidly concentrate by race and class.
In 2001, when the boundary change went into effect, the racial
averages of the three schools were slightly different: Olson middle
school was at 16.8% minority, Oak Grove was at 21.6% minority,
and Valley View was at 32.8% minority.259 However, the average
minority enrollment at Valley View has increased since the middle
school boundaries were redrawn in 2000-2001.260 Presently, Olson
Middle School is 18.5% non-White; Oak Grove is 27% non-White;
and Valley View is 40% non-White.261 The district-wide average
of minority students in Bloomington middle schools is 27.9%.262
Thus the trend in minority enrollment has generally been
increased diversity, though at a greater rate in some schools.263


  T.1 Middle School Enrollment in Bloomington, by Grade
                  2004-05 School Year264

                                                 Total           Minority
                       Grade       Minorities    Enrollment      Percentage
    Oak Grove          6th         86            301             28.57143
                       7th         67            271             24.72325
                       8th         71            259             27.41313
                       Total       224           831             26.95548


  256. Bloomington Sch. Bd., Meeting Minutes, BLOOMINGTON PUB. SCH. 7 (Jan. 8,
2001) (on file with author).
  257. Id.
  258. See Bloomington Sch. Bd., Meeting Minutes, BLOOMINGTON PUB. SCH. 3
(Jan. 22, 2001) (on file with author); BLOOMINGTON PUB. SCH., supra note 252.
  259. Id.
  260. See id.
  261. Id.
  262. Id.
  263. See id.
  264. MINN. DEP’T OF EDUC., RACE DATA BY SCHOOL FOR THE 2004-05 SCHOOL
YEAR (2005) (on file with author) (figures may not add up to 100% due to rounding).
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146                        Law and Inequality                    [Vol. 24:__


    Valley View        6th         97           217           44.70046
                       7th         104          246           42.27642
                       8th         83           240           34.58333
                       Total       284          703           40.39829

    Olson              6th         57           244           23.36066
                       7th         51           288           17.70833
                       8th         49           317           15.45741
                       Total       157          849           18.49234

      The trend in all three middle schools is for increased minority
enrollment, as each sixth grade class in the 2004 fall enrollment
had a higher percentage of minority students.265 Table 1 indicates
that Oak Grove has the least amount of racial transition between
its three grades. An analysis of the enrollment patterns is beyond
the scope of this paper, but the Oak Grove attendance area tends
to traverse east-west boundaries in Bloomington.266 Plans that
could have conceivably drawn all three schools into a closer racial
balance were not selected, most likely for reasons such as walking
distance, elementary boundary cohesiveness, and opposition to
busing.267 By creating school boundaries that captured a diverse
population    in    Bloomington      and     incorporated     distinct
neighborhoods, Bloomington should have been able to create a
system that did not segregate its schools.

II. The Choice Is Yours: An Attempt to Desegregate
    Minneapolis Public Schools From 1995 to Today
     After Judge Larson ended court supervision, integration
became an elusive goal in Minneapolis’s public schools. The
District began operating under the state “15%” rule, which
required each school in a district to have minority enrollment no
higher than 15% of the district average.268 In 1995, the state
Board of Education officially abandoned the 15% rule.269 A


  265.   See id.
  266.   See BLOOMINGTON PUB. SCH., supra note 252.
  267.   See BLOOMINGTON PUB. SCH., supra note 252, at 1-5.
  268.   Heilman, supra note 153, at 169.
  269.   Bauerlein, supra note 188.
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2005]        Minneapolis Desegregation Settlement                                147
metropolitan rule, requiring schools across the region to be in
balance, was proposed and rejected in 1999 in favor of less
stringent rules.270 By then, over 14% of the District’s elementary
schools were in violation of the rule.271

        A. The NAACP and Xiong Lawsuits
      Dismayed by this increasing segregation, the Minneapolis
Branch of the NAACP filed suit in state court on September 19,
1995, on behalf of all children enrolled in Minneapolis public
schools.272     The named defendants included the State of
Minnesota, the Board of Education, both chambers of the
Minnesota legislature, the Metropolitan Council,273 and various
state officials.274 The complaint in the suit began by noting the
racial and economic disparity between Minneapolis schools and
suburban schools.275 Minneapolis schools were over 59% minority
and 55% poor at the time of the complaint, while the schools of
surrounding suburbs were “overwhelmingly white” and more
affluent.276 By the time the Xiong complaint was filed in 1998, the
statistics had increased to about 70% each.277
      The plaintiffs argued that this segregated education
constituted a per se violation of the Minnesota State Constitution’s
education and equal protection clauses.278 The year before the

      270 In the Matter of Proposed Adoption of Rules Relating to Desegregation,
Minn. Rule Parts 3535.0100 to 3535.01800, para. 31, Jan. 20, 1999, at
http://www.oah.state.mn.us/aljBase/130010448.rr.htm (noting Dr. Orfield and
Roundtable proposal for a metropolitan-wide desegregation rule).
  271. Id.
  272. See Class Action Complaint at 2, Minneapolis Branch of the NAACP v.
State, No. 95-14800 (Minn. Dist. Ct. Sept 19, 1995) [hereinafter NAACP Compl.].
The allegations in this complaint were substantially the same as those filed on
February 23, 1998. See Class Action Complaint, Xiong v. State, No. 98-2816 (Minn.
Dist. Ct. Feb 23, 1998) [hereinafter Xiong Compl.].
       273 The Met Council is a powerful regional government authority in the
Twin Cities, with substantial control over the development priorities of the region.
See Myron Orfield, Metropolitics 189-196 (1997) (appendix A).
   274. See NAACP Compl., supra note 272, at 1-2.
   275. See NAACP Compl., supra note 272, at 2; see also Xiong Compl. at 2.
   276. See NAACP Compl., supra note 272, at 11.
   277. See Xiong Compl., supra note 272, at 10 (“[T]he public schools of the City of
Minneapolis are approximately 70 percent children of color and approximately 70
percent low-income.”).
   278. NAACP Compl., supra note 272, at 13, 17-19; see also Xiong Compl., supra
note 129 at 2, 18-20 (alleging per se violations of the education and equal protection
clauses of the Minnesota Constitution).
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148                        Law and Inequality                         [Vol. 24:__
filing of the NAACP complaint, the Minnesota Supreme Court had
found that the state’s Education Clause—which places a duty on
the state legislature “to establish a general and uniform system of
public schools”279—created a fundamental right to education.280
The NAACP’s framing of segregation as a state constitutional
problem mirrored the strategy of plaintiffs who had been
successful to varying degrees using state equal protection and
education clauses to promote school funding equity.281 The claim
that segregated schools violated a state constitutional education
clause was argued in a contemporaneous action by plaintiffs from
Hartford, Connecticut, under that state’s constitution.282 The final
decision in that case, which was argued nine days after the filing
of the NAACP complaint, held that the state’s education clause,
along with other constitutional provisions, required Connecticut to
remedy Hartford’s segregated schools.283
      The plaintiffs in NAACP v. State alleged that the segregated
Minneapolis schools also, as an issue of fact, provided an
inadequate education
      [b]ecause the Minneapolis public schools must devote
      disproportionately large resources to dealing with the
      many problems and difficulties that accompany poverty
      and racial segregation ….284
This inadequate education was reflected, the plaintiffs alleged, in
the lower test scores and higher non-graduation rates of
Minneapolis students as compared with state suburban
students.285    The NAACP complaint also alleged that the
segregation of the Minneapolis Public Schools had a negative


   279. MINN. CONST. art. XIII, § 1.
   280. See Skeen v. State, 505 N.W.2d 299, 313 (Minn. 1993) (holding that
education is a fundamental right under the Minnesota constitution both because of
its importance to the state and the language of the education clause); see also
NAACP Compl., supra note 272, at 17 (noting fundamental right to an adequate
education under the Education Clause of the Minnesota constitution).
   281. See Michael Heise, State Constitutions, School Finance Litigation, and the
“Third Wave”: From Equity to Adequacy, 68 TEMP. L. REV. 1151 (1995). The choice
of plaintiffs to proceed in state court on adequacy theories is discussed; the article
particularly focuses on Sheff v. O’Neill, 678 A.2d 1267 (Conn. 1996).
   282. See id.
   283. Sheff, 678 A.2d, at 1270-71.
   284. NAACP Compl., supra note 272, at 13. See also Xiong Compl., supra note
272, at 11-12, 19 (alleging factual inadequacy due to substandard character of the
education and inequality to that provided in surrounding suburban districts).
   285. See NAACP Compl., supra note 272, at 14; see also Xiong Compl., supra
note 272, at 13-14.
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2005]       Minneapolis Desegregation Settlement                              149
effect on its students’ chances for employment and higher
education.286
      The NAACP plaintiffs charged that Minneapolis’s failure to
enforce current state rules on capping minority enrollment in its
schools, among other actions, showed that the State had not taken
effective   action   to   desegregate    Minneapolis     schools.287
Additionally, they claimed the State reinforced racial and
economic inequality through its school construction policies and
failure to promote integrated housing.288 The plaintiffs asked the
court to order the State to end its segregative practices and
provide the children of Minneapolis’s public schools with “an
adequate and desegregated education.”289
      The defendants claimed that Minnesota’s Education Clause
only created a limited duty to establish schools,290 and that there
was no equal protection violation because no intentional acts were
alleged.291 The district court judge, after hearing arguments in
April 1996, ordered several defendants dismissed but allowed the
case to go forward.292 The district court also determined that the
issues raised in the case were sufficiently novel and important
enough to be decided directly by the Minnesota Supreme Court.293
The higher court refused to hear the certified questions, and the
defendants subsequently sought unsuccessfully to have the case
dismissed on jurisdictional grounds.294


  286. See NAACP Compl., supra note 272, at 14; see also Xiong Compl., supra
note 272, at 14.
  287. See NAACP Compl., supra note 272, at 15; see also Xiong Compl., supra
note 272, at 15-16.
  288. NAACP Compl., supra note 272, at 16; see also Xiong Compl., supra note
272, at 16-17 (noting, as an example, the failure of Metropolitan Council to ensure
that the suburb of Maple Grove kept its fair housing obligations).
  289. NAACP Compl., supra note 272, at 19; Xiong Compl., supra note 272, at 21.
  290. See Defendants’ Amended Notice of Motion and Motion to Dismiss
Plaintiffs’ Complaint at 1-2, Minneapolis Branch of the NAACP v. State of
Minnesota, No. 95-14800 (Minn. Dist. Ct. Feb 27, 1996); Memorandum of Law in
Support of Defendants’ Mot. to Dismiss at 4, 10-19, Minneapolis Branch of the
NAACP v. State, No. 95-14800 (Minn. Dist. Ct. Feb 27, 1996) [hereinafter Mem. Of
Law in Supp. Of Defs.’ Mot. To Dismiss].
  291. See Mem. of Law in Supp. of Defs.’ Mot. to Dismiss, supra note 290, at 21-
23.
  292. See Minneapolis Branch of the NAACP v. State, No. 95-14800, slip op. at
A24 (Minn. Dist. Ct. June 26, 1996) (order granting defendants’ motion to dismiss
in part and denying in part and denying plaintiffs’ motion for summary judgment).
  293. Minneapolis Branch of the NAACP v. State, No. 95-14800 (Minn. Dist. Ct.
Nov. 21, 1996) (order for certification of questions on appeal).
  294. Minneapolis Branch of the NAACP v. State., No. 95-14800, slip op. at 1-2
(Minn. Dist. Ct. July 21, 1997) (order denying motion for judgment on the
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150                        Law and Inequality                     [Vol. 24:__
      The effort of the NAACP to join the Metropolitan Council for
a combined schools and housing remedy was defeated on res
judicata grounds because of the consent decree in the housing
discrimination case Hollman v. Cisneros.295 Claims against the
Metropolitan Council were heard in the U.S. Court of Appeals for
the Eighth Circuit,296 whose decision was vacated and remanded
by the U.S. Supreme Court.297          Ultimately, however, the
Metropolitan Council was successful in dismissing claims against
it.298 This was an important loss in the NAACP case because of
the remedial power of the Metropolitan Council to coordinate
affordable housing and school desegregation.299
      Not to be confused with the 1995 filing of the NAACP case, a
later suit, Xiong v. State, was filed in 1998,300 and contained
virtually identical claims to the NAACP case. Dan Shulman, the
attorney for the NAACP in the original lawsuit, noted that the
new case contained an additional due process claim and could
possibly help move the State toward a settlement, though
settlement was not the reason Xiong was filed.301 The Hennepin
County District Court later consolidated both cases for purposes of
trial.302
      On the verge of proceeding to trial, the attorneys for the


pleadings).
   295. Xiong v. State, no. 98-961 (Minn. Dist. Ct. Sept 15, 1998) (discussing
preclusive effect of the consent decree in Hollman v. Cisneros). Hollman was “a
class action challenging the concentration of public housing in certain
neighborhoods in Minneapolis.” See NAACP, et al. v. Met. Council, 125 F.3d 1171
(8th Cir. 1997), petition for certiorari filed,(June 16, 1998), at 5.
   296. Xiong v. State, 195 F. 3d 424 (8th Cir. 1999).
   297. Minneapolis Branch of the NAACP v. State, 522 U.S. 1145 (1998) (vacated
and remanded). At issue was the use of a housing segregation claim against the
Met Council, which the Council asserted was effectively settled by the consent
decree in Hollman v. Cisneros. See Xiong v. State, No. 98-961, slip. op. at 2 (D.
Minn. Sept. 15, 1998). The Met Council removed both the NAACP and Xiong
litigation to federal court under the All Writs Act. Id. at 3.
   298. Xiong, 195 F.3d at 4271 (1999) (remanding plaintiff’s claims against
Metropolitan Council with directions to dismiss with prejudice).
   299. See Myron Orfield, Land Use and Housing Policies to Reduce Concentrated
Poverty and Racial Segregation, ___ FORDHAM URB. L.J. ____ (forthcoming 2006)
(manuscript at 27, on file with author).
   300. See Xiong Compl., supra note 129.
   301. See Debra O’Connor, Parents File Lawsuit over Minneapolis Schools,
PIONEER PRESS (St. Paul), Feb. 24, 1998, at 2B.
   302. See Settlement Agreement, Case Nos. 95-14800, 98-2816 (Minn. Dist. Ct.
2000), at Part 2(c) (“On October 16, 1998, the Court ordered that the actions be
consolidated for the purposes of trial only.”).
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2005]        Minneapolis Desegregation Settlement                               151
Minneapolis NAACP felt that settlement best served the interests
of the children in Minneapolis and would provide the best
remedy.303 A settlement that precluded extensive litigation and
provided a pilot program for Minneapolis children would at least
provide support for a future, more extensive effort. In early 1999,
the parties began to work on the settlement, first by exchanging
proposals and then by mediated settlement negotiations.304 In
2000, before the case was to be tried, the parties reached an
agreement.305
      The settlement agreement established three key programs:
1) to allow low income Minneapolis students to attend suburban
schools, 2) to give low income Minneapolis students preferred
access to magnet schools within the District, and 3) to increase the
accountability of the MSD to parents.306 The suburban plan set
aside 2000 spaces over four years for Minneapolis students from
low-income families to attend suburban schools which are part of
the West Metro Education Program, a consortium of school
districts in the western metropolitan area.307 Although the
suburban program aspect was set to expire at the end of the 2004-
05 school year, it was extended to the 2005-06 school year.308 The
settlement also increased access for low-income children to
existing magnet school programs and intradistrict transfers.309


  303. See Dan Shulman, Address at the Institute on Race and Poverty Race and
Regionalism               Conference,            (May            7,             2005),
http://www.irpumn.org/website/conference/audio/Session6_DanShulman.m3u.
  305. See Settlement Agreement at 1, Minneapolis Branch of the NAACP v. State,
No. 95-14800 (Minn. Dist. Ct. May 8, 2000) [hereinafter Settlement Agreement];
Xiong v. State, No. 98-2816 (Minn. Dist. Ct. 2000) (unpublished case, on file with
author); see also KAHLENBERG, supra note 21, at 176-77 (2004) (noting that
settlement was reached in 2000 to expand upon existing suburban transfer
program).
  306. See Settlement Agreement, supra note 305, at ex. B.
  307. Id. at 2. The initial plan included the following districts: Richfield, St.
Louis Park, Wayzata, Columbia Heights, Edina, Hopkins, Robbinsdale, St.
Anthony/New Brighton. Id. at 1. Sometime thereafter, Eden Prairie was also
added. See West Metro Education Program, supra note 35.
  308. See Allie Shah, School-Choice Plan Extended, STAR TRIB. (Minneapolis),
Jan. 8, 2004, at B1.
  309. See Settlement Agreement, supra note 305, at 2. Minneapolis agreed to
adopt an Enhanced Choice program and an Accountability program. Id. These are
important aspects of the choice plan, though they are not the primary focus of this
article. Intra-district transfer can only achieve so much in a school district that is
overwhelmingly poor and minority. Thus, the lion’s share of the discussion is
reserved for the suburban transfer program, which is at the same time the most
controversial and promising aspect of CIY.
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152                        Law and Inequality                      [Vol. 24:__
        B. The Choice Is Yours and Participant Response to the
                Program
      CIY works by expanding upon Minnesota’s open enrollment
laws.310 CIY children may transfer into suburban districts,
bringing with them a substantial portion of state aid.311 Likewise,
because CIY children are by definition poor, they bring in more
money than a middle-class child would due to Minnesota’s funding
schemes.312 These features, combined with free transportation for
the children,313 makes CIY an attractive program for all sides.
       Children are already permitted under state law to attend
schools outside their district,314 but they must pay for their own
transportation to the district and compete for available spaces.315
The suburban CIY program gives priority access to open spaces in
certain suburban districts to Minneapolis students who are
eligible for free or reduced lunch.316 If demand for the program
outstrips availability then residents in certain regions within
Minneapolis receive higher priority.317 Suburban districts may
only refuse to accept a CIY student if there is not space available
in the program.318 Interstate 394 is a north/south dividing line,
and Minneapolis residents north of the freeway may have priority
in suburban districts north of the freeway, and similarly in
suburban districts south of the freeway.319
      At the beginning of its fifth year in the fall of 2005, 1680
students were participating in the suburban choice component of
the program.320 More than 3,500 had participated in the program


  310. See id. at i-ii.
       311 Id.
312
     Id; see also Tim Strom, Minnesota House Research Department, Minnesota
School Finance: A Guide for Legislators, 19 (Nov. 2005) (“The formula that
generates compensatory revenue is a concentration formula based on each school
building’s count of students that are eligible for free or reduced price meals.”).
       313 See Settlement Agreement, supra note 305.
  314. See id. at i (noting that over 30,000 students participated in open
enrollment in the 2002-03 year).
  315. See id.
  316. See id. at i-ii.
  317. See id. at vii, 9. The neighborhoods are roughly near-North Minneapolis,
downtown, parts of Northeast near the river, Seward, and South Minneapolis.
  318. See id. at 8, 10.
  319. See id. at 1 n.3.
  320. Minneapolis School District, Student Accounting Department, Choice is
Yours Enrollment (9/27/05); see also ASPEN ASSOCS., MINNESOTA VOLUNTARY
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2005]       Minneapolis Desegregation Settlement                             153
over its five year lifetime.321 The majority of the participating
suburban schools had considerably fewer children of color than
Minneapolis schools.322 In the first two years, only eight of the
sixty suburban schools had more than 35% minority enrollment.323
The suburban schools also enrolled relatively few students who
were eligible for free or reduced price lunches.324 A study covering
the first three years of CIY showed 52% of the program’s
participants came from two zip codes in north Minneapolis, which
had mostly racially isolated schools.325        By far the largest
percentage of students (37%) went to Robbinsdale, followed by
Richfield (14.4%).326 Both these districts were spurred to the
program in part based on their declining enrollment, and in part
based on a desire to help with a west-metro desegregation
program.
      The earliest years of CIY suffered from poor publicity.327 In
an evaluation of the first several years, the MDE found that of the
families that were eligible and did not utilize or apply for CIY, 9 of
10 did not even know that it existed.328 Even among families that
utilized the suburban CIY program, some did not realize they were
participating in it.329 This most likely demonstrates that there is
an information gap for low-income or minority families that can
keep them from accessing the program. Moreover, the state and
school districts had difficulty making the program known to
parents, as name recognition was so low.330
      Parents chose to enroll their children in suburban school
districts as part of the CIY program primarily for reasons of
academic quality.331 Parents of CIY participants were also more
likely than city parents to give school safety as a reason for


PUBLIC SCHOOL CHOICE 2003-2004 13 (2004).
     321 Minneapolis Public Schools, Student Accounting.
  322. See PALMER, supra note 37, at 17.
  323. See id. at 3.
  324. See id.
  325. See ASPEN ASSOCS., supra note 320, at 14.
  326. See Id.
  327. See ELISABETH A. PALMER, supra note 37, at 30; Randy Furst, School-Choice
Info Misses Some Parents, STAR TRIB. (Minneapolis), May 27, 2001, at B1.
  328. See PALMER, supra note 37, at 29 (“Only 1 in 10 parents of eligible, non-
participating students . . . recognized the program by name.”).
  329. See id. at 30.
  330. See id.
  331. See PALMER, supra note 37, at 40 (finding that 32.8% of parents cited
academic quality as their primary reason for enrolling their children).
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154                        Law and Inequality                     [Vol. 24:__
choosing the school than parents of students in Minneapolis
schools.332    Interviews with parents of participants in the
programs showed great satisfaction with the program.333
      Interest in the suburban transfer program is highest among
Black families. Before the creation of the CIY program, nearly
60% of suburban transfer students were White.334 Now, nearly
50% are Black and only 37% are White.335 Forty-seven percent of
CIY participants were previously enrolled in a Minneapolis public
school, and 7% were previously enrolled in a charter or private
school.336
      Parents rated the schools well in a wide variety of indicators,
including setting high standards for achievement, creating
community, and making students feel welcome.337 Though parents
seemed pleased with the suburban schools’ approach to diversity,
interviews with teachers showed that they thought fewer teachers
were comfortable talking about racism and prejudice than parents
believed and that students of different races did not work well
together.338 Only 17% of CIY withdrawals in the first four years
returned to the Minneapolis Public Schools,339 indicating that
parents were perhaps more satisfied with suburban schools than
with their previous schools. The remainder of those withdrawing
may have chosen to attend charter schools or some other non-MPS,
non-CIY school. Some anecdotal evidence also suggests that
families may be moving out of Minneapolis to relocate in the
districts where their children attend school.340 In that case, the
families would no longer be CIY enrollees, but new suburban
residents eligible for local enrollment.341
      There is little hard data measuring the achievement of CIY
students in relation to those students in Minneapolis schools.342 A


  332. See id. at 44 tbl. 2.16.
  333. See ASPEN ASSOCS., supra note 320, at 14 (relaying that 90% of CIY parents
would choose the same school again).
  334. See id. at 13.
  335. See id. at 13-14.
  336. Id. at 14.
  337. See id. at 66 tbl.3.2; see also id. at app. A-26 tbl.25.
  338. See id. at 67-68.
      339 Minneapolis Public Schools, Student Accounting Department, Choice is
Yours Program Transfers Out of Minneapolis, June 17, 2005.
  340. See id.
  341. See id.
  342. See id. at 22.
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2005]       Minneapolis Desegregation Settlement                              155
comparison of program participants in suburban schools with
students in Minneapolis schools, which did not control for other
factors, showed increases in scores in four out of five
comparisons.343 The group responsible for releasing the first two
reports on CIY and the Minnesota Department of Education
planned to release data on student achievement in June of 2005
but has not followed through with a public release, as of January
2005.344
      Focus groups held during the 2002-03 school year showed
that most students had an easy transition into their new
schools.345 The vast majority of students stated that they felt
welcome in their new schools.346 Students at nearly half of the
participating schools, however, reported difficulties transitioning
due to the new cultural environment or not knowing anyone at
their new school.347 Some students reported being unfavorably
singled out in class, while others reported that teachers gave them
extra help.348 Students often faced stereotypes held by fellow
students and, to a lesser extent, teachers.349 When students were
asked what advice they would give to the program’s
administrators, the most common suggestion was to improve
transportation.350
      Although students were not asked about their overall
satisfaction with the program, a third of the respondents replied to
that effect on their own. Overall, an analysis of the students’
responses in focus groups found that the students utilizing CIY
interpreted their experiences in their new schools “quite
positively.”351




   343. Palmer, supra note 37, at 86 (showing increases in year one participants in
fifth grade math and year two participants in third grade reading, third grade
math, and fifth grade reading; showing lower scores for year one participants in
eighth grade reading).
   344. In discussions with staff at the Minnesota Deptartment of Education, it
appears that the student achievement data will be publicly available at some point,
but the Department indicated no plans to make a public release of the data.
   345. See PALMER, supra note 37, at 93, 96.
   346. See id. at 98.
   347. See id. at 97.
   348. See id. at 98-99.
   349. See id. at 99-100.
   350. See id. at 107.
   351. Id. at 109.
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156                        Law and Inequality                     [Vol. 24:__
        C. Minnesota’s Desegregation Rules
      Contemporaneous with the CIY settlement and the end of the
NAACP litigation, the Minnesota Department of Education
enacted administrative rules to deal with segregation. Minnesota
administrative rules provide guidance for assessing racial balance
in schools and school districts. A “racially identifiable” school is
defined as one that is twenty percentage points above the district
average for that grade level in terms of minority enrollment.352 A
“racially isolated” school district is one where the enrollment of
minority students exceeds 20 percentage points of district-wide
enrollment at any adjoining school district.353 Some types of
schools are specifically exempted from the effect of the rules.
Among other types, this includes charter schools and schools
designed to “address limited English proficiency.”354              For
segregated schools not the result of intentional discrimination, a
separate plan exists.355 All districts are required to provide the
commissioner with racial composition data each year in order to
determine which schools are racially isolated.356
      The remedy for isolated school districts is similar to that for
segregated schools not the result of intentional discrimination.357
After a finding that the district is isolated, the Commissioner is
required to notify the isolated district and the surrounding
districts.358   The affected districts must then establish a
“multidistrict collaboration council” to “identify ways to offer cross-
district opportunities to improve integration.”359 A plan is then
approved, which may include incentives listed in the rules.360
Some of the incentives involve transportation aid, developing
cooperative magnet schools, creating cooperative efforts to recruit




  352. See MINN. R. ch. 3535.0110, subp. 6 (2003).
  353. See id. subp. 7.
  354. Id. subp. 8. Schools which are designed to address individual education
needs, special education, or alternative education are also exempted. Id.
  355. See MINN. R. ch. 3535.0160, subp. 1 (2003).
  356. See id. ch. 3535.0120, subp. 1.
  357. See MINN. R. ch. 3535.0160, subp. 1 (2003).
  358. See MINN R. ch. 3535.0170, subp. 1 (2003). The same exceptions exist for
American Indian concentrations. Id.
  359. Id. subp. 2.
  360. See id. subp. 5. The plan is required to include community outreach
preceding the plan, cross-district, integration issues, goals of integration, and
methods to accomplish the goals. Id. subp. 6(A).
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2005]       Minneapolis Desegregation Settlement                               157
minority teachers, and creating community education programs.361
A plan remains in effect for four years from the time it is
created.362
      While the rules generally will not create a mandatory
integration remedy,363 they can increase interaction between
districts to encourage voluntary desegregation. Under the present
statute, broad authority resides in the Commissioner of Education
to “address the need for equal educational opportunities for all
students and racial balance” through the use of administrative
guidelines.364 Administrative rules create voluntary remedies for
districts that are segregated or have segregated schools.365 The
practical effect of the rules has been to encourage “collaboration
councils” that work to support integration initiatives between
racially isolated and non-racially isolated school districts.366
Unfortunately, a recent review of this system by the Legislative
Auditor revealed that the Department of Education is not
following through with the rules by evaluating district
desegregation plans.367
      With the enactment of the rules in 1999, seven school
districts in the metro area were found to be racially isolated.368
This brought twenty-six districts within the auspices of the
administrative rule requiring multidistrict collaboration.369 The
West Metro Education Program, as the administrator of CIY,
among other programs, is one such example of this.370 Another is
the Northwest Integration School District, which was created
specifically to address the identification of Brooklyn Center and
Osseo school districts as racially isolated following the enactment
of the 1999 rules.371



  361. See id. subp. 6 (B).
  362. Id. subp. 8.
  363. See supra notes 363.See supra notes Error! Bookmark not defined.---
Error! Bookmark not defined. and accompanying text. and accompanying text.
  364. MINN. STAT. § 124D.896, (b) (2004).
  365. See MINN. R. ch. 3535.0170.
  366. See MINN. R. ch. 3535.0170, subp. 2, 3 (1999).
      367 Minnesota Office of the Legislative Auditor, School District Integration
Revenue, 28 (2005), at http://www.auditor.leg.state.mn.us/ped/pedrep/integrevf.pdf.
  368. See id. para. 56.
  369. See id.
  370. See West Metro Education Program, supra note 307.
  371. See          Northwest          Integration         School          District,
http://www.nws.k12.mn.us/background.html (last visited August 5, 2005).
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158                        Law and Inequality                        [Vol. 24:__
III. The Leading Edges of Integration Today
      The increasing school segregation witnessed in inner-ring
suburbs in the Twin Cities mirrors the pattern of segregation that
occurred in the central cities a generation ago.372 Legal challenges
to these patterns are the new frontier of civil rights in Brown-like
principles of integration.373
      The inner-ring suburbs are arguably seeing the same types of
boundary adjustments and indifference to segregation that
produced the lawsuit in Booker.374 Resegregation after decades of
fighting to produce equality in our schools has brought schools
throughout the country back to 1968 levels of segregation.375
Moreover, remedies that rely exclusively on funding have failed to
equalize opportunity and achievement.376            Indeed, as the
segregated urban school districts receive greater and greater
funding per pupil we have an education system that is “separate
and more than equal.”377
      The recent half-century anniversaries of the Brown decisions
have produced much discussion and more than a few symposia
trying to answer the question of what exactly Brown
accomplished.378 First, Southern schools were radically altered
when de jure segregation was struck down in Brown.379
Conversely, Northern schools were faced with a more fragmented
system of government that permitted Whites to flee to suburban
enclaves.380    Thus, Northern schools might have also faced
substantial integration were it not for the Milliken decision.381


  372. See discussion supra notes 235-243 and accompanying text (Osseo and
Bloomington discussion).
  373. See supra notes 373.See supra notes 140 and accompanying text.
  374. See supra Part I.B.4.
  375. Gary Orfield, The Growth of Segregation, in DISMANTLING DESEGREGATION:
THE QUIET REVERSAL OF BROWN V. BOARD OF EDUCATION [hereinafter
DISMANTLING DESEGREGATION] 53, 54-55 (Gary Orfield & Susan Eaton eds., 1996).
  376. See supra notes 376.See supra notes 196---198 and accompanying text. and
accompanying text.
  377. Susan Eaton et. al., Still Separate, Still Unequal: The Limits of Miliken II’s
Monetary Compensation to Segregated Schools, in DISMANTLING DESEGREGATION,
supra note 375, at 143, 143-178.
  378. See, e.g., 24 L. & INEQ. 1 (2006).
  379. See Gary Orfield, Turning Back to Segregation, in DISMANTLING
DESEGREGATION, supra note 375 at 1, 7-8.
  380. See Gary Orfield & Susan Eaton, Dismantling Desegregation, in
Dismantling Desegregation, supra note 375, at 1, 15.
  381. Richard Thompson Ford, Brown’s Ghost, 117 HARV. L. REV. 1305, 1309-1312
(2004). Ford refers to Milliken v. Bradley, 418 U.S. 717 (1974). Northern schools
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2005]        Minneapolis Desegregation Settlement                               159
Brown accomplished much, but since the early 1990s institutions
have faced the threat of resegregation in previously integrated
schools.382 This threat is becoming more and more prevalent in
older suburbs, where school boundaries are transforming
residential segregation into segregation in public schools.383 If this
kind of drastic resegregation and socioeconomic concentration can
happen in a region as wealthy and as White as the Twin Cities, it
can conceivably happen anywhere in the country. The principles
of integration must be brought to bear on the problem of
fragmented government that permits these separate school
systems to exist in metropolitan regions.
      If federal desegregative lawsuits were the vehicle for bringing
the system of de jure segregation to a halt, then the newer state
constitutional remedies are the leading edge of Brown and the
desegregation movement today, promising to end de facto
segregation. The first part of the following section discusses the
continuing validity of some of the federal case law.384 Next the
article turns to the relatively new area of state constitutional
desegregation lawsuits.385 Beginning with Sheff and paralleled in
the Minnesota cases NAACP and Xiong, plaintiffs are avoiding the
federal courts and enforcing their state fundamental education
rights in an attempt to do away with de facto segregation in our
nation’s schools. In Minnesota, the result of state litigation has
been a promising choice program that could be an effective
element of a more comprehensive desegregation plan.
      However, while federal desegregation remedies still exist for
new constitutional violations, pursuing lawsuits against each
suburban school district would be both difficult and ultimately
unproductive. Without a metro-wide plan to desegregate the entire
region they would simply experience white flight as Minneapolis
did. On the other hand, if a metropolitan-wide remedy does not
become available, plaintiff’s may be forced to sue for the temporary
relief district-by-district remedies can provide.


are often in smaller districts, more closely aligned with municipal boundaries,
while Southern schools were more closely aligned with county boundaries,
permitting the type of metro-wide relief that is necessary for effective integration.
See, e.g., AMY STUART WELLS AND ROBERT CRAIN, STEPPING OVER THE COLOR LINE
31-32 (1997).
  382. See Orfield, supra note 379, at 19-22.
  383. See Gary Orfield, Segregated Housing and School Resegregation, in
DISMANTLING DESEGREGATION, supra note 375, at 291, 292.
  384. See infra Part III.A.2.
  385. See infra Part III.B.
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160                        Law and Inequality                      [Vol. 24:__
        A. The Decline of Federal Legal Remedies for Desegregation

        1. The “Dismantling” of Desegregation
     Since the 1990s, academics have documented the “quiet
reversal” of the school integration created by Brown and its
progeny.386 The Supreme Court, since the time of Milliken v.
Bradley, treated integration, or “unitary” status, as a one-time
goal that, once reached, cured the harms segregation wrought in
the past.387    School districts were free to dismantle their
desegregation programs and return to neighborhood schools.388
     Minneapolis returned to neighborhood schools promptly after
Sharon Sayles Belton, a Black mayoral candidate, promised a
largely white electorate that she would work to stop intra-city
busing.389 Minneapolis now features an open enrollment policy
and a limited intradistrict transfer program as options for inner-
city children, but, undeniably, most schools in the district are
segregated by race and income.390
     Milliken is a bad precedent for an integrated society for
several reasons, including it’s presaging of the dismantling of
federal desegregation law.391 Most importantly, it remains the
worst precedent for integration because it bars metropolitan
desegregation under the federal constitution.392        Without a
violation that somehow crosses municipal boundaries, federal
courts are without power to order interdistrict remedies—arguably
the most effective remedies for creating stable educational and


  386. See generally DISMANTLING DESEGREGATION, supra note 375.
  387. See Milliken, 418 U.S. 717. In later cases, on a showing of “unitary” (i.e.
non-segregated) status and “[operation] in compliance with the commands of the
Equal Protection Clause,” the Court permitted a school district to dismantle its
integrative programs. Bd. of Educ. of Oklahoma City Public Sch. v. Dowell, 498
U.S. 237, 247 (1991); see also Freeman v. Pitts, 503 U.S. 467, 499 (1992) (giving
district courts authority to return oversight to school districts even when full
compliance is not yet reached).
  388. Id.
  389. See Scott Russell. Schools Become Big Issue in Mayor’s Race, SKYWAY NEWS
(Minneapolis), Sept. 26, 2005, available at http://www.skywaynews.net/articles/
2005/09/26/news/news02.txt (last visited Oct. 12, 2005).
  390. The current subsidized inter-district transfer program is too small to meet
demand and effectively desegregate schools. See supra note 317 and accompanying
text. Indeed, the availability of open enrollment could be a constitutional
imperative when a person’s neighborhood school is segregated by race.
  391. See supra note 387 and accompanying text.
  392. See Milliken, 418 U.S. at 745.
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2005]        Minneapolis Desegregation Settlement                               161
residential integration and for boosting student achievement and
opportunity.393 Municipal and school district boundaries are
creations of state law,394 so limiting remedies for constitutional
violations to these boundaries makes the efforts futile because it
gives the state broad discretion to control the pace of integration.
     It is clear that federal legal remedies are currently
inadequate to address de facto segregation. The Minnesota Rules
dealing with desegregation coincide precisely with the federal case
law in the past 15 years permitting a return to segregated schools.
Minnesota law permits separate schooling for Whites and
minorities as long as the state is not foolish enough to advertise its
intent to segregate its schools.395
     Gary Orfield discusses this tendency in his book, Dismantling
Desegregation, noting that the United States Supreme Court can
have a normalizing and legitimizing effect on government
actions.396 When, for example, the Supreme Court approved the
“separate but equal” doctrine in Plessy v. Ferguson,397 it accepted
the idea that racial segregation is natural and unsolvable. Orfield
draws this parallel a hundred years later, noting that the Court in
Dowell and Milliken claimed natural boundaries and local
preferences make true integration impossible.398 Likewise with
the desegregation rules in Minnesota: the law is only concerned
with obvious and stark racism that rarely exists in reality.

        2. The Continuing Validity of Keyes
     Booker clearly anticipated the Supreme Court’s decision in
Keyes, relying on the underlying district court Keyes decision and
other lower federal court decisions.399 In both Booker and Keyes



   393. See, e.g., ROBERT CRAIN ET AL., DESEGREGATION PLANS THAT RAISE BLACK
ACHIEVEMENT: A REVIEW OF THE RESEARCH 28-31 (June 1982).
   394. See, e.g., Richard Briffault, Our Localism, 90 COLUM. L. REV. 1, 6-7 (1990)
(explaining black-letter law principles of local government’s powerlessness against
state intrusion). Briffault goes on to show that in the area of school finance and
land use, the state gains some real legal authority, although still ultimately subject
to state supreme control. See id. at 24-39, 40-59.
   395. See supra notes 395.See supra notes Error! Bookmark not defined.---371
and accompanying text. and accompanying text.
   396. Gary Orfield, Plessy Parallels: Back to Traditional Assumptions, in
DISMANTLING DESEGREGATION, supra note 375, at 23, 26-27.
   397. 163 U.S. 537, 548-49 (1896).
   398. Gary Orfield, Unexpected Costs and Uncertain Gains of Dismantling
Desegregation, in DISMANTLING DESEGREGATION, supra note 375, at 73, 88, 93.
       399 Booker v. Special Sch. Dist. No. 1, 351 F. Supp. 799, 808 (1972) (citing to
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162                        Law and Inequality                   [Vol. 24:__
de facto segregation was labeled a product of explicit school and
housing segregation.400 Keyes imposes a requirement that an
entire district will be subject to court supervision if even the
smallest portion of its attendance boundaries are gerrymandered
to produce racial isolation in schools.401
     It is fascinating to examine recent boundary adjustments in
suburban Minneapolis districts under the holdings of Booker and
Keyes. Although the facts are not fully developed for this article,
the conduct observed strongly suggested repeated federal
constitutional violations as the racially diverse suburbs set their
attendance boundaries.402
     Keyes outlined the elements of intentional segregation a
plaintiff would have to prove in a northern desegregation case. The
court declared:

       Where plaintiffs prove that the school authorities have
       carried out a systematic program of segregation affecting a
       substantial portion of the student schools teachers and
       facilities within the school system, it is only common sense to
       conclude that there exists a predicate for a finding of the
       existence of a dual school system. … First, it is obvious that
       a practice of concentrating Negroes in certain schools by
       structuring attendance zones or designating feeder schools
       on the basis of race has the reciprocal effect of keeping other
       schools predominantly white.         Similarly the practice of
       building a school … with conscious knowledge that it would
       be a segregated school … . So also the use of mobile class
       rooms, the drafting of student transfer policies, the
       transportation of students, and the assignment of faculty
       and staff on racially identifiable bases have the clear effect of
       earmarking schools according to their racial composition.403

The Court continued, stating that these effects of segregating



Keyes v. Sch. Dist. No. 1, 313 F. Supp. 61, 73 (D.C. Colo. 1970).
  400. See supra notes 400.See supra notes 162---181 and accompanying text. and
accompanying text.
  401. See supra note 401.See supra note 157---160 and accompanying text. and
accompanying text.
      402 See supra Part __.
      403 413 US at 201-203 (emphasis added).
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2005]             Minneapolis Desegregation Settlement                          163
schools directly led to residential segregation.404
     In Washington v. Davis and Massachusetts v. Feeney, the
Supreme Court clarified the need to prove intent to establish a
violation of the equal protection clause and the 1964 Civil Rights
Act. In light of these cases, the Supreme Court reaffirmed the
Keyes standard of establishing segregative intent in a school
desegregation case in both Dayton and Columbus decisions 405 In
both cases, the court found that segregative boundary decisions
that have a “foreseeable and anticipated disparate impact are
relevant to prove segregative intent.”406


      404   Id.
      405   See Dayton Board of Education v. Brinkman, 433 US 406 (1977) (Dayton
I); Dayton Board of Education v. Brinkman, 443 US 526 (1979) (Dayton II) and
Columbus Board of Education v. Pennick, 443 US 449 (1979)
      406   449 US at 464. The court specifically declared that    “Adherence to a
particlar policy or practices ‘with full knowledge of the predictable effects of such
adherence upon racial balance in a school system is one factor among many others.”
      In Dayton, the court found that: 1) segregated schools, 2) segregated faculty
assignments, 3) optional attendance zones that allowed whites to avoid integrated
schools and 4) school construction policies that enhanced segregation were
sufficient to establish a presumption of segregative intent and shift the burden to
the defendant school district. This burden could only be satisfied with evidence to
support a finding that the segregative actions “were not taken in effectuation of a
policy to create or maintain segregation.” Similarly, in Columbus the court found
that: 1) Segregated schools 2) segregated faculty assignments, 3) discontiguous
attendance areas and 4) segregative boundary changes established such intent. The
Court in Columbus confirmed the lower courts which found that choosing between
two boundary plans, one which was integrative and one which was segregative,
could be used as evidence of segregative intent. Penick, 443 US at 463 n. 10 citing
429 F. Supp. At 248-250 (“The Board chose the segregative option, and the district
court was unpersuaded that it had any legitimate education reasons for doing so.”).
      In FN 11 the court noted:
       The district court found that, of the 103 schools built by the board between
       1950 and 1975, 87 opened with racially identifiable student bodies and 71
       remained that way at the time of trial.         This result was reasonably
       foreseeable under the circumstances ….
Penick, 443 U.S. at 463 n.11.
      Interestingly and relevant to modern cases the Court also noted that:
      Local community and civil rights groups, [a blue-ribbon university
      commission], and officials of the Ohio State Board of Education all called
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164                          Law and Inequality                     [Vol. 24:__


     Subsequent case law decided under Keyes, Dayton, and
Columbus has stated if a number of the following factors are
present, segregative intent will be presumed and once these
factors are established it would warrant “an inference and a
finding that segregative actions “were not taken in effectuation of
a policy to create or maintain segregation or were not among the
factors…causing the existing condition of segregation in these
schools.”407 The relevant factors are laid out here:

      1) segregative drawing or altering of an attendance zone
      2) segregative location of new schools
      3) segregative expansion of existing schools (such as
enlarging minority schools rather than transferring minority
students to nearby white schools with available space)
      4) school board’s failure to relieve overcrowding at white
schools by transferring white students to nearby minority schools
with available space
      5) Discriminatory hiring of teachers and administrators
      6) Discriminatory promotion of teachers and administrators
      7) School board’s perpetuation or exacerbation of school
segregation by strict adherence to neighborhood school policy after
a segregated school system had been developed
      8) School board’s failure to adopt a proposed integration plan
or implement previously adopted plan
      9) School board’s adoption of open enrollment or free transfer
policies with the effect of allowing whites to transfer out of black
schools without producing a significant movement of blacks to
white schools or whites to black schools.
      10) School segregation de facto rather than the result of state
action.
      It appears from Keyes, Dayton, and Columbus that
foreseeable consequences of segregation, in addition to several of


      attention   to   the    problem   of   segregation   and    made     curative
      recommendations…. But the board’s response was minimal. .
Penick, 443 U.S. at 463 n.12.
      407 Penick, 443 U.S.      at 535, (citing Keyes v. Sch. Dist. No. 1,
413 US 189, 214 1973)).
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2005]       Minneapolis Desegregation Settlement                              165
these factors being present, establishes a presumption of
segregative intent, which must be rebutted by the defendant
district. Unless a school board could then convince the court that
the segregative action was isolated in its effect and that it had
never been influenced by racial considerations, the presumption is
established. The shifting of the burden, in the vast majority of
desegregation cases, has been determinative.408


        B. State Constitutional Remedies: The Promise of Sheff v.
           O’Neil
      An abolition of legal formalities in segregation—refusing to
pretend that segregation in the housing market and in public
schooling are independent results of personal preference—is a
worthwhile goal but not likely a winning argument in court.
Federal legal remedies remain discouraging for metro-wide
relief,409 but some relatively recent state constitutional cases have
become the new basis for legal attacks on segregation.
      Litigants have turned to state constitutional law to argue
that school officials must act to prevent segregation.410 A certain
degree of wariness about legal remedies to enforce integration is
warranted, but plaintiffs’ groups should not submit to the kind of
pessimism that allows school officials to make their decisions in a
vacuum. State constitutions are a sound basis for recent pro-
integrative decisions and settlements in both Connecticut and
Minnesota.411
      The Connecticut case Sheff412 and the Minnesota case
Xiong413 provide examples of integrative lawsuits at work today.
Faced with a choice between settling for increased resources and
proceeding to sue to desegregate their school districts, these
plaintiffs rejected the sidetrack strategy of increasing funding to
segregated schools.414 While the Sheff court stopped short of
ordering a remedy, its sweeping opinion declaring segregated
schooling to be an inherently inadequate education provides the

      408 See GARY ORFIELD, MUST WE BUS at 18-21.
  409. See supra Part III.A.1.
  410. See infra note 440 and accompanying text.
  411. See infra note 432 and accompanying text (discussing Sheff); supra note 295
and accompanying text (discussing Xiong).
  412. 678 A.2d 1267 (Conn. 1996).
  413. See supra part II.A. (discussing case in detail).
  414. See infra note 425 and accompanying text.
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166                        Law and Inequality                       [Vol. 24:__
best example of what desegregation litigation can achieve if
vigorously pursued.415
      Connecticut, in the 1970s, first found a right to equal
education for every child in Horton v. Meskill.416 Like many
states, Connecticut’s constitution requires the state to provide a
free education to all children within the state.417 Since Horton,
this principle has been interpreted as a requirement to provide
adequate funding and to equalize the funding disparities that
appeared between school districts with high property wealth and
poorer inner-city districts.418 Horton, however, declined to address
race as a possible avenue for equalizing education.419 Sheff sought
to remedy that oversight.
      As in Brown, the Sheff plaintiffs attempted to prove that a
segregated education is inherently an unequal education for all
children, White or minority.420 In part based on the same claims
pursued in Horton and in part on Justice Douglas’s keen insight
into the nature of de facto segregation,421 the plaintiffs argued that
no intent need be shown for a constitutional violation to occur; de
facto segregated schooling violated equal protection, regardless of
whether it resulted from housing discrimination, attendance
boundary gerrymandering, or the spatial separation of wealth and
poverty.422
      The Supreme Court of Connecticut considered four claims,
the first of which, and the prevailing claim, was a “garden variety
Brown” claim.423 The second claim accused the defendants of


  415. See infra notes 415.See infra notes 401---Error! Bookmark not defined.
and accompanying text. and accompanying text.
  416. 376 A.2d 359, 374 (Conn. 1977) (“We conclude that . . . in Connecticut,
elementary and secondary education is a fundamental right, that pupils in the
public schools are entitled to the equal enjoyment of that right . . . ”).
  417. CONN. CONST. art VIII, § 1 (“There shall always be free public elementary
and secondary schools in the state. The general assembly shall implement this
principle by appropriate legislation.”).
  418. See Lauren Wetzler, Buying Equality: How School Finance Reform and
Desegregation Came to Compete in Connecticut, 22 YALE L. & POL’Y REV. 481, 484-
85 (2004) (discussing some funding disparities before the Horton lawsuit).
  419. See id. at 487-88 (explaining plaintiff’s desire not to “mix up race” in the
lawsuit).
  420. See id at 496.
  421. See id; Keyes v. Sch. Dist. No. 1, Denver, Colo., 413 U.S.189, 214-17 (1973)
(Douglas, J., concurring).
  422. Wetzler, supra note 418, at 496-97 (discussing the plaintiff’s claims and
arguments).
  423. Id. at 496-97.
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2005]       Minneapolis Desegregation Settlement                              167
maintaining and perpetuating racial and social segregation in
Hartford in a discriminatory manner, thereby violating both equal
protection and the right to a public education.424 This second
claim recognizes that, while intentional state action may not have
created segregated schools, state knowledge of de facto segregation
and the continued maintenance of such a school system remains
unconstitutional, particularly if the district has used a
neighborhood schooling plan.425
      The third claim, some have noted, resembled a school finance
claim.426 By comparison to neighboring school districts,
Connecticut maintained the Hartford district in such poor
condition so as to disadvantage the children residing there, again
in violation of equal protection and the state education clause.427
The fourth claim is not usually discussed and is not relied upon
here.
      Connecticut attempted to defend the case on appeal based on
a state action theory that it won at trial and with which the
Supreme Court of Connecticut promptly disagreed.428 Proof that
the state acted to segregate schooling was unnecessary, the court
stated, because Connecticut law “imposes an affirmative
constitutional obligation on the legislature to provide a
substantially equal educational opportunity for all public
schoolchildren . . . .”429 Principles of state action and proof of
discriminatory intent which would have been fatal to the Sheff
claims if brought in federal court provided no defense in state
court precisely because the plaintiffs sued under the state
constitution.430
      The court found that the fundamental right to an education,
established in Horton,431 was denied to inner-city children in
Hartford because of the extreme racial segregation, thereby
violating the state’s equal protection clause.432 The court ordered


  424. Sheff v. O’ Neill, 678 A.2d 1267, 1271 (Conn. 1996).
  425. See id. at 1287-88.
  426. See Wetzler, supra note 418, at 497-98.
  427. See Sheff, 678 A.2d at 1271-72.
  428. See id. at 1277-78.
  429. Id. at 1280.
  430. Id. (noting that state, not federal, constitution obviates need for proof of
discriminatory intent).
  431. See Sheff, 678 A.2d at 1286 (“‘[I]n Connecticut the right to education is so
basic and fundamental that any infringement of that right must be strictly
scrutinized.’”) (quoting Horton v. Meskill, 376 A.2d 359 (Conn. 1977)).
  432. See id. at 1287. The three-step test from Horton was used to show (a) a
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168                        Law and Inequality                         [Vol. 24:__
the state to fix the problem and provide Connecticut’s inner-city
children with an adequate education.433 The court found that,
since the duty to provide an adequate education is an affirmative
obligation, the state action doctrine that bars most federal
desegregation litigation would not bar the claims asserted in
Sheff.434
      An important and sometimes overlooked aspect of Sheff is
that the court ordered the state to act, as opposed to the
traditional “command and control” model utilized by the federal
courts in the heyday of desegregation.435
      The fundamental right to an education found in Horton and
used in Sheff is precisely the right that federal courts denied to
plaintiffs in San Antonio Independent School District v.
Rodriguez.436 It provides the best hook on which to base a Brown-
style desegregation claim and is perhaps more appropriate than a
lawsuit brought in federal court, as state governments are the best
equipped to deal with their own schools. While Keyes remains
good law and potentially provides a valuable claim in federal
litigation, Sheff obliterates the distinction between intentional
state action to segregate schools and the de facto segregation that
already exists in housing and schooling.437 A Sheff-like result also
requires the input of both parties to reach enumerated goals and
acquires the legitimacy of a remedy crafted by consent of the



more than de minimis disparity in educational disadvantage, (b) a shifting of the
burden to the state to prove that the disparities are legitimate objectives, and a
failure to hold that burden, and (c) if proving the burden, the continuing disparities
still may not be so great as to be unconstitutional. See id. at 1287.
   433. See id. at 1290-91.
   434. Id. at 1280. The Court noted:
       The fact that the legislature did not affirmatively create or intend to
       create the conditions that have led to the racial and ethnic isolation in
       the Hartford public school system does not, in and of itself, relieve the
       defendants of their affirmative obligation to provide the plaintiffs with
       a more effective remedy for their constitutional grievances.
 Id. A lack of state action would normally be a bar to relief in federal courts, as
they have only interpreted their duty to be the remediation of de jure segregation or
intentional actions leading to segregated schools. See supra notes 428-429 and
accompanying text.
  435. See Charles F. Sabel & William F. Simon, Destablization Rights: How
Public Law Litigation Succeeds, 117 HARV. L. REV. 1015, 1024 (2004) (explaining
“vast provinces of administration” of federal oversight in desegregation cases).
  436. 411 U.S. 1, 35 (1972).
  437. See supra note 434 and accompanying text.
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2005]        Minneapolis Desegregation Settlement                                169
democratically elected legislature.438 Any lawsuit brought to
desegregate a school district should be tailored in such a way as to
take advantage of the theories in Sheff in the hope that it will
convince more courts to take a hard look at de facto segregation.

        C. Adequacy Through Funding: An Inadequate Remedy
      Some have commented that desegregation rarely fails
because it has been tried and found wanting; more often, however,
“desegregation has been. . .found difficult and not tried at all.”439
      Such is not the case with strategies to increase school
funding. School finance litigation has touched many states—
almost all of them—and finance systems have been found
unconstitutional in at least 26 states.440 After failure in the
federal courts,441 and on a suggestion of Justice Brennan,442
plaintiffs’ lawyers went to state courts to pursue justice in
equalizing education finance. They have achieved some notable
successes.443 In a period of twenty years, from 1972 to 1992, court-
ordered finance reform provided the hammer that legislation could
not, reducing inequities in spending by 16 to 38 percent.444 In the
early 1970s, states covered 40 percent of the cost of education;
today, that figure is closer to 60.
      In spite of their success in increasing resources to inner-city
schools, increased resources generally have not translated to
improved educational outcomes.445 Inner-city Minneapolis has


  438. See supra note Error! Bookmark not defined. and accompanying text.
  439. Goodwin Liu & William Taylor, School Choice to Achieve Desegregation,
(Aug. 8, 2003) (unpublished draft on file with author).
  440. See       Campaign        for     Fiscal     Equity,     State-by-State,     at
http://www.schoolfunding.info/states/state_by_state.php3 (last visited November
15, 2005). Recently, the Kansas Supreme Court ordered their state legislature to
double the amount it planned to spend on its schools to provide adequacy. See
Gretchen Ruethling, Court Orders More School Funding, N.Y. TIMES, June 4, 2005,
at A12.
  441. See, e.g., Rodriguez, 411 U.S. 1.
  442. William Brennan, State Constitutions and the Protection of Individual
Rights, 90 HARV. L. REV. 489, 491 (1977) (“State constitutions . . . are a font of
individual liberties, their protections often extending beyond those required by the
Supreme Court’s interpretation of federal law.”).
  443. See                  Access,                Litigation                Overview,
http://www.schoolfunding.info/litigation/litigation.php3 (last visited Sept. 11, 2005).
Forty-five states have seen litigation, and 29 have rendered decisions in contested
cases. Id.
  444. See Melissa C. Carr & Susan H. Fuhrman, The Politics of School Finance in
the 1990s, in NATIONAL RESEARCH COUNCIL, supra note 440, at 136, 149.
  445. Molly McUsic notes that socioeconomic integration would be more effective
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170                        Law and Inequality                      [Vol. 24:__
many schools of concentrated poverty, some of the neediest
children in the country, and students that speak over 90 different
languages,446 producing the most difficult-to-educate district in the
state. In 2005, the average student in Minneaota generated
$8,516 for their school.447        The large, inner-city district of
Minneapolis now receives about $3,000 more per pupil than the
state average, or about $11,393 per student.448 These figures
include costs for non-General Education revenue, such as special
education and building expenditures.449
      Some schools within the MSD spend much more than even
the Minneapolis per pupil average and invariably these are
racially isolated schools of concentrated poverty. For example,
Barton Elementary is integrated (47% minority) and has a lower
than average free lunch ratio and receives about $9101 per pupil,
less than the Minneapolis average.450 On the other hand, North
Star elementary is segregated at 97% minority and more than 96%
free or reduced lunch and receives more than $13,000 per pupil.451
These statistics are in some respects truisms because state
financing schemes direct increased funding to schools with high
proportions of poor students.452
      It is clear that increasing funding cannot by itself address the
problems that schools of concentrated poverty are creating in
Minneapolis. Scholars have long known that educating children

than increased funding in increasing the education attainment of poor, minority
children. See Molly S. McUsic, The Future of Brown v. Board of Education:
Economic Integration of the public Schools, 117 HARV. L. REV. 1334, 1353-56 (2004)
(noting that increased funding has not succeeded in providing poor students with
an “equal education” while class integration has produced positive results).
  446. See CITY OF MINNEAPOLIS, MINNEAPOLIS EMPOWERMENT ZONE 8, available
at http://www.ci.minneapolis.mn.us/ez/docs/ez-ch2.pdf.
  447. MINN. DEP’T OF EDUC. DIV. OF PROGRAM FIN., K-12 EDUCATION FINANCE
OVERVIEW 2004-2005 15 (2004).
  448.
http://education.state.mn.us/ReportCard2005/loadFinanceAction.do?SCHOOL_NU
M=000&DISTRICT_NUM=0001&DISTRICT_TYPE=03.
       449 Id.
      450
http://education.state.mn.us/ReportCard2005/loadFinanceAction.do?SCHOOL_NU
M=106&DISTRICT_NUM=0001&DISTRICT_TYPE=03
     451
http://education.state.mn.us/ReportCard2005/loadFinanceAction.do?SCHOOL_NU
M=185&DISTRICT_NUM=0001&DISTRICT_TYPE=03
     452 See MINNESOTA DEP’T OF EDUC., supra note 447, at 19.
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2005]       Minneapolis Desegregation Settlement                               171
from low-income families is different and more difficult than
educating middle-income children.453 Because funding does not
address the root problem—broken homes, parents working two
jobs, poor health, and oppositional culture—it cannot effectively
increase these students’ educational outcomes.454 This is not to
say that low-income children cannot be adequately educated; it
says that low-income children can be most effectively educated in
schools that have fewer children with similar problems, peers who
will influence positive attitudes about school achievement, and
teachers who have the time and training to work with them.
Programs designed to assist low-income children should not be
based on the exception to the rule—such as the shining example of
the charter school that worked—but should be based around
creating stable middle-class schools with students from diverse
backgrounds because these are known to work.


        D. Adequacy Through Choice: Expanding and Improving on
           CIY
     While Minnesota already provides open enrollment, a low-
income student’s freedom to choose is meaningless without the
means to get to the school.455 CIY improves on open enrollment by
providing transportation.456 Another key asset of the program is
its broad bipartisan support in Minnesota, as evidenced by its
recent continuation.457       Moreover, the force behind the


    453. JAMES COLEMAN, EQUALITY OF EDUCATIONAL OPPORTUNITY 22 (1966). This
phenomenon is well observed and exceeds even spending in importance as to life
outcomes. See generally RICHARD D. KAHLENBERG, ALL TOGETHER NOW 26 (2001).
More and more, modern scholars call for socioeconomic integration only, as opposed
to racial and socioeconomic integration, as a way of avoiding the thorny legal
problems associated with race. See id.; see also McUsic, supra note 445. This tactic
may achieve some similar objectives, as race often corresponds with poverty, but
does not fully address the issue of racial integration by requiring interaction
between people of different races.
    454. See Kahlenberg, supra note 21, at 208-12.
    455. PALMER, supra note 455.PALMER, supra note 455.PALMER, supra note 37, at
i., at i., at i.
    456. Id. at ii.
    457. See Bruce Fuller et al., Policy-Making in the Dark: Illuminating the School
Choice Debate, in WHO CHOOSES? WHO LOSES?: CULTURE, INSTITUTIONS, AND THE
UNEQUAL EFFECTS OF SCHOOL CHOICE 1, 3 (Bruce Fuller et al. eds., 1996). The
authors note that school choice has always had a broad appeal, between
conservatives who wanted to improve local schools, and by “the Left as a way to
empower poor and working-class families to challenge paternalistic bureaucracies.”
Id. at 3.
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172                        Law and Inequality                       [Vol. 24:__
settlement—the NAACP and Xiong litigation—utilized theories
and remedy-building strategies similar to those employed in
Sheff.458 The following recommendations are based on the belief
that creating middle-class schools throughout the region is in
everyone’s best interest. Two key recommendations are to expand
the program throughout the region to include more districts and to
solve the transportation problem by tying affordable housing into
the structure of the program. Part of this section also addresses
the issue of what will become of Minneapolis if CIY is permitted to
expand.

        1. Expanding CIY to More School Districts
      Encouraging student mobility will have the effect of reducing
student enrollment in the immediate future. Indeed, the number
of children that are required to move to stabilize the region’s
schools seems daunting. Recent research conducted by the
Institute on Race & Poverty have determined that more than
15,000 Black students would need to leave majority Black schools
to bring the seven-county metro-area schools into some semblance
of racial stability. Slightly less than 9,000 students would need to
come from Minneapolis alone.459 However, these numbers are
similar in comparison to some sucessful metropolitan plans.460
      However, increasing open enrollment options for low-income
children can be a benefit for Minneapolis schools. Tough decisions
about closing neighborhood schools will certainly have to be made,
but fewer or smaller schools may help Minneapolis focus on
narrowing the gap with the children that remain.461
      Moreover, as noted above, Minneapolis expects to face severe


  458. See supra note 281 and accompanying text.
      459 IRP’s findings are based on a ceiling of no more than 35% Black students
in any metro-area school. See Memo from IRP Staff to Myron Orfield (date) (on file
with author).
      460 See, e.g., Amy Stuart Wells & Robert L. Crain, Stepping over the Color
Line 102 (1997).
461 New York City, for example, recently started a small schools program,
attempting to reduce drop out rates and the problems of densely crowded schools.
David Herszenhorn, In New York’s Smaller Schools, ‘Good Year and a Tough Year,’
N.Y. TIMES, Aug. 8, 2005, at A1. The program is still in the initial stages with the
attendant growing pains, but school boards around the country are taking notice.
Id.
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2005]       Minneapolis Desegregation Settlement                            173
enrollment declines in the next 5 years whether or not CIY is
extended and expanded.462 The region experienced a similar turn
of events in the 1990s when enrollment dropped off and recently
built schools were rendered unnecessary.463 At the least, this
demonstrates the volatility of the enrollment in public schools and
the tough decisions about school closures that school board officials
are sometimes required to make.
     However, the promise of integrated schools and an integrated
region—which is achievable here in the Twin Cities—is too great a
goal not to at least encourage integration through choice. CIY
should be expanded to accommodate interest in the program.
Minneapolis will need to craft a strategy that can encourage
Minneapolis residents to enroll in Minneapolis Public Schools,
thereby replacing the loss of low-income minority students and
creating a diverse student body. A consolidation of schools that
focuses on the students that remain and attempts to lure the
middle class back is Minneapolis’s best hope of creating an
attractive educational climate.

        2. Tying School Choice Into Affordable Housing
      The largest federal housing program for new housing starts,
the Low Income Housing Tax Credit,464 operates in some ways like
CIY, in that the prime motivator is private action. The credit
funds low-income housing starts by granting a tax credit to
developers who promise to maintain a certain percentage of their
units for low-income tenants only.465 Developers sometimes build
these units in areas of low opportunity and high-minority
populations, exacerbating the ghetto problem.466 Sometimes they
do not, however, and the distribution of these units in areas of
opportunity can help moderately low-income residents access good
jobs and schools.467
      State housing agencies can prioritize the awarding of tax
credits and, as such, are able to direct affordable housing


  462. See supra note 145 and accompanying text.
  463. See supra note 233 and accompanying text.
  464. See 26 U.S.C. § 42 (2004).
  465. See Myron Orfield, Racial Integration and Community Reviatlization:
Applying the Fair Housing Act to the Low-Income Housing Tax Credit, __ VAND. L.
REV. __ (forthcoming 2005).
  466. See id.
  467. See john a. powell, Opportunity-Based Housing, 12 J. AFFORDABLE HOUS. &
COMMUNITY DEV. 188-89 (2003).
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174                        Law and Inequality                   [Vol. 24:__
production into appropriate areas.468 Housing agencies can locate
areas that can sustain low-income populations, such as those with
adequate public transportation and a surplus of lower-wage jobs.
The flexibility of the state to prioritize the location of affordable
housing production, with the tax credit in particular, makes the
prioritization of housing starts toward CIY families possible and
productive.
      The Institute on Race & Poverty has also considered
preliminary evidence about the ability of well-sited housing
policies to increase suburban integration. While the research is
preliminary and beyond the scope of this paper, our initial
research shows that the number of minority children that would
have to transfer to suburban schools for racial equality would be
significantly fewer if proactive housing policies had been
pursued.469
      Maintaining racially and socially integrated schooling in the
suburbs is important not only for the life opportunities of the
children, but also for the maintenance of integrated housing
markets.     Middle-class homebuyers undoubtedly make their
decisions based in part on the quality of the public schools in the
area.470 When every school is a middle-class school that is more or
less racially integrated, the housing market becomes homogenous
and reduces the possibility of creating White, middle-class
enclaves.

        3. Solving Transportation Limitations
     One of the inherent problems with school choice is that
parents are only willing to send their children a certain distance to
be educated. To remedy some of the inherent transportation
problems in CIY, affordable units, as indicated above, should be
prioritized by the state housing finance agency that distributes the
credits to favor CIY participants who send their children to
outlying suburban districts. Thus, if parents like a school in the
extreme western region of Osseo or Eden Prairie—a trip that could
take up to an hour or more—and benefit from increased
opportunity in that neighborhood, but the school is too far from


  468. See Orfield, supra note 468.See Orfield, supra note 465. .
      469 Institute on Race & Poverty, Tables and Research on Housing
Integration (unpublished).
  470. See MYRON ORFIELD, AMERICAN METROPOLITICS 9 (2002).
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2005]       Minneapolis Desegregation Settlement                             175
home, they should receive priority for housing in that area.
Likewise, proposals for credits could be given priority if they are
within a certain distance of a CIY destination school in one of the
participating districts.471
     Disparate government agencies who work in these areas—the
Minnesota Housing and Finance Agency, which oversees the tax
credit program, and the Minnesota Department of Education—
should work together on a memorandum of understanding. They
can coordinate their efforts as noted above to improve access for
low-income and minority families to opportunity-rich areas and
high-achieving schools.

        4. Ensuring Racial Integration
     Recent commentators have ducked the thorny issue of racial
integration in schools and instead turned to class integration,
almost as a proxy.472 The best work by one of these commentators,
Richard Kahlenberg’s All Together Now, argues that the current
legal structure makes racial integration impossible and that a
focus on race reduces the likelihood of class integration.473
Kahlenberg is correct in noting that the creation of all poor, but
integrated inner-city schools would not be the best step forward.474
Kahlenberg also argues that racial integration runs the risk of
alienating “white working-class voters.”475 While Kahlenberg is
also correct in requiring the social integration of schools—low-
income students are proven to learn better when surrounded by
middle-income children476—we cannot ignore the benefits of racial
diversity and the pitfalls of racial isolation.
     A similar concern with race-neutral remedies is the historical
experience in housing cases. In New Jersey’s Mount Laurel
remedy, thousands of units of affordable housing were built in the
suburbs in an attempt to deconcentrate poverty for the largely



  471. Because of the “not-in-my-backyard” (“NIMBY”) issue with low-income
housing, however, this could have the perverse incentive of turning suburban
attitudes against the CIY program, as it would be more likely to bring low-income
housing into their neighborhoods. However, the result of creating mixed-income
neighborhoods and mixed-income schools is too important to permit NIMBYism to
interfere.
  472. See, e.g., McUsic, supra note 445.
  473. See KAHLENBERG, supra note 21, at 92-96.
  474. See id. at 93.
  475. See id. at 96.
  476. See KAHLENBERG, supra note 21, at 58-61.
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176                        Law and Inequality                      [Vol. 24:__
minority poor of New Jersey’s inner cities.477 Unfortunately,
because the program was race-neutral, much of the suburban
housing went to low-income whites, and minorities retained their
dilapidated housing stock in the impoverished inner cities.478
      Part of this sense of defeatism with respect to racially
integrative policies is a fixation on busing as the method of
integration.479 But school choice, even if it grants preferences to
minorities, is not comparable to busing because White suburban
“voters” are not required to send their children back into the city.
The recent Supreme Court case Grutter v. Bollinger may have
breathed new life into voluntary school desegregation remedies,
allowing districts to be cognizant of race while also allowing school
choice to predominate.480
      The legal review under the federal standard is strict scrutiny
when dealing with a race-conscious plan, and strict scrutiny has
often been referred to as “strict in theory, but fatal in fact.”481
Nevertheless, the legal landscape surrounding the use of race
consciousness and school choice to integrate schools is
encouraging. The First Circuit recently upheld a voluntary
desegregation plan in Lynn, Massachusetts, permitting the school
district to deny voluntary transfers to maintain racial balance in
the district’s schools.482 Similarly, the Ninth Circuit upheld the
use of racial tiebreakers in Seattle’s high school assignment
plan.483 Finally, in a per curiam opinion, the Sixth Circuit also
upheld a similar program in Louisville that considered race as an


      477 NAOMI BAILIN WISH & STEPHEN EISDORFER, THE IMPACT OF MT. LAUREL
INITIATIVES: AN ANALYSIS OF THE CHARACTERISTICS OF APPLICANTS AND
OCCUPANTS 68-76 (1996).
     478 NAOMI BAILIN WISH & STEPHEN EISDORFER, THE IMPACT OF MT. LAUREL
INITIATIVES: AN ANALYSIS OF THE CHARACTERISTICS OF APPLICANTS AND
OCCUPANTS 68-76 (1996) (analyzing data collected by the New Jersey Affordable
Housing Management Service).
  479. See Kahlenberg, supra note 21 (Kahlenberg refers to busing as a politically
charged issue in his reference to working-class voters).
  480. Grutter v. Bollinger, 539 U.S. 306, 307 (2003) (holding that the “narrowly
tailored use of race in admissions decisions to further a compelling interest in
obtaining the educational benefits that flow from a diverse student body is not
prohibited by the Equal Protection Clause”).
       481 See, e.g., Fullilove v. Klutznick, 448 U.S. 448, 519 (1980).
  482. See Comfort v. Lynn Sch. Comm., 418 F.3d 1 (1st Cir. 2005).
  483. Parents Involved in Comm. Sch. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162
(9th Cir. 2005).
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2005]        Minneapolis Desegregation Settlement                                   177
assignment factor.484
      The programs in these cases share many similarities. First,
they are all the product of voluntary choices. In Seattle, students
rank their preferred schools and school administrators do their
best to take student preferences into account.485 At the same time,
race is one of several factors used to create a stably integrated
school district.486 None of the plans involved involuntarily busing
students or the use of rigid quota systems. Thus, it could be
expected that the schools would not have a uniform enrollment of
whites and minorities, but would each fall within a range around
the district’s average enrollment.487 Importantly, however, the
range around each school’s enrollment would reflect the district
average, thereby discouraging racial identification of schools.
      Minnesota currently does not use similar methods to
encourage racial integration, yet we have the legal means to do so.
Many of the metro-area districts belong to a collaboration council
or have their own desegregation plan. Minnesota’s open
enrollment laws permit a district receiving a nonresident student
application for enrollment to deny that student admission if the
enrollment of that student would conflict with the district’s
desegregation plan.488 Thus, through the use of desegregation


      484 McFarland v. Jefferson County Board of Education, et al., 320 F.
Supp.2d                        834                         (WD                          Ky.
2004), aff d, 416 F.3d 513 6th Cir. (2005).
       485 See Parents Involved in Comm. Sch., 426 F.3d at 1169-70 (noting that
Seattle   Plan   used   four   tiebreakers     if   student’s   preference   resulted    in
oversubscribed high schools).
      486 See McFarland v. Jefferson County Board of Education, et al., 320 F.
Supp.2d                        834                         (WD                          Ky.
2004), aff d, 416 F.3d 513 6th Cir. (2005).
       487 See McFarland, 320 F. Supp.2d at 857-58 (noting discussion of what
does and does not constitute a quota).
      488 See Minn. Stat. 124D.03, subd. 4 (2005). Thus, the power to deny
nonresident student admission based on race under these circumstances is limited
to districts with approved desegregation plans. The Minnesota Rules governing
desegregation, however, do limit the ability of districts to discriminate on the basis
of race. They note that segregation is the “intentional acts” of a school district that
discriminate against a student based on race, and that also has the effect of
increasing a concentration of protected students at a school. Minn. R. 3535.0110,
subp. 9 (2005). While this could be construed to prohibit any race “discrimination”
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178                        Law and Inequality                          [Vol. 24:__
plans—and limited to students taking advantage of open
enrollment or CIY—school districts can encourage minority
enrollment in schools with few minorities, and curtail minority
enrollment in schools that are on the verge of “tipping.” Likewise,
suburban school districts can discourage white flight from
Minneapolis or inner suburban districts with high-minority
schools by deprioritizing white transfer students.
     Any improvement on CIY must be cognizant of race, giving
preference to minority students in racially isolated schools, or to
White students transferring to integrated schools if they are
leaving all-White schools. Likewise, CIY-participating districts
have the power to deny transfers to students who do not make
integrative transfers. CIY is now only required to look at
applicants by free or reduced lunch status.489 Instead, CIY could
give preference to minorities in racially isolated schools who
intend to transfer to suburban schools with a certain racial
makeup. If CIY children are attending schools in danger of
reaching a tipping point, then the rules should be revised to steer
children away from these schools.           Desegregation of the
Minneapolis schools by resegregating the suburban districts is not
an acceptable option.

   5. The Choice is Yours Allows a Future for the Minneapolis
   School District

    The next logical question becomes: If the Choice is Yours is
fully implemented, what happens to the Minneapolis schools and
the children left behind? In a choice regime, the children not
choosing to leave will be worse off, particularly if CIY continues to
skim off motivated, high-achieving poor students.
    It is true that if CIY is expanded and fully implemented,
Minneapolis and Saint Paul would likely have fewer students,
would have to close school buildings, and would lay off teachers.
But this possibility must be viewed in light of the reality of what is
now happening—not an ideal alternative where segregated school
districts are stable and provide an adequate education.


in school assignments, it is more likely that the text only applies to actions that are
taken with the discriminatory purpose of creating minority schools, such that
whites do not have to interact with minorities in the district.
489. See supra Part __.
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2005]       Minneapolis Desegregation Settlement                              179
    CIY also must be evaluated viewed in terms of the experience
of stably integrated regions to stop white flight and rebuild white
and middle-class enrollment in central cities and older suburbs. In
reality, the process of flight caused by racial and social segregation
and resegregation in the Minneapolis schools is already at
catastrophic levels and enrollment declines will continue for
Minneapolis.490 Decline is attributable to both flight to the
suburbs and inner-city flight to charter schools.491 Moreover, this
flight is even present and gaining strength in the older suburbs
with diversifying neighborhoods. Flight to the suburbs from
Minneapolis cannot only be attributed to white flight, but it is also
flight by more than half of blacks and Latinos to suburban
neighborhoods.492
    If this process is not interrupted, it will continue until
Minneapolis’s schools are much worse off, resembling the
economically and racially segregated schools on Chicago’s south
side, in Cleveland, or in Washington, DC. Any potential short-term
transitions from offering expanded choice under CIY must be
judged in light of rapidly worsening conditions that have already
left many of the poorest children with the fewest life choices
behind in the worst schools in the region. We can preserve status
quo school systems—or we can protect children and their rights to
educational opportunity.
    Finally, in evaluating the potential effects of an expanded
school choice program, we have to remember that the present
ongoing catastrophe is occurring with the poorest schools and most
segregated schools for which funding has not been a successful
remedy. As stated earlier, funding is not likely to be increased
significantly by the state because of resistance and resentment
against inner-city schools.493 High spending and poor results has
already become the foil for opportunistic politicians seeking to
divide individuals and communities on the basis of race by
blaming the victim. It is an age-old strategy, and it works. It
works even better when what they are saying is partly true,
because the districts they attack have no realistic strategy to make
a difference with the funding. This aid, which is forthcoming only


      490 See Reinhardt, supra note 213 at 2.
      491 See notes 204-224 and accompanying text.
      492 See supra (section on IRP research).
      493 Supra introduction.
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180                        Law and Inequality                        [Vol. 24:__
because of the threat of integration,494 will disappear if we grow
complacent in a segregated society.
    If CIY were fully expanded, there would be more socio-
economic balance in school enrollments, and stable racial and
social integration for all children would be possible. Minneapolis
would have fewer kids and schools in the short term, but its kids,
schools and neighborhoods would do better. And as its
performance improved, so would public support for Minneapolis,
both within the city and in the region.
    Most optimistically, if the experience of other cities and
regions with strong metropolitan desegregation holds true, a
smaller, stably integrated, and uniformly strong Minneapolis
school system would begin to gain students. In many of the
regional desegregation cities, place like economically booming
Raleigh, North Carolina, and Charlotte-Mecklenburg, where
metropolitan school desegregation was fully implemented, central
city neighborhoods experienced “reverse white flight.”495 This also
meant reverse middle-class flight. When the central cities schools
became stably integrated, middle-class, white families began to
move back.496
    Minneapolis’s own experience with its stably integrated
schools and majority middle-class schools in its southwest
quadrant bears this out.497 While the enrollment in segregated
and resegregation schools continues to plummet, stably integrated
and majority middle class school experience strong, constant
demand. White middle-class families with choices move into their
boundaries and participate in competitive lotteries to attend them.
White, middle-class families living in neighborhoods with
segregated schools often apply and are content to have their
children bused across town to go to an opportunity-rich, racially
and socially integrated school while they continue living in the
neighborhoods they like.
    In Minneapolis, white parents with high incomes and
suburban choices remain in their neighborhoods if their children

      494 See supra Part __ (discussing threat of lawsuits for increased funding).
      495 NYT Article re: Raleigh.
496
    Gary Orfield, Metropolitan School Desegregation, in IN PURSUIT OF A DREAM
DEFERRED: LINKING HOUSING & EDUCATION POLICY (john powell et al., eds.) at 133
(citing, Education Week, May 16, 1993, school enrollments compiled by the center
for Education stats).
       497 See Institute on Race & Poverty, Twin Cities Demographics, at slides __.
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2005]       Minneapolis Desegregation Settlement                                181
are admitted to stably integrated schools, even if it means riding a
bus. If forced to attend severely segregated neighborhood schools
that children can walk to, they leave. This is increasingly true
with middle-income nonwhite families as well. The experience in
Minneapolis and other places shows how more access to integrated
magnet schools, like Barton, has the possibility to create stability
in other neighborhoods across the city, even if these schools are
not “neighborhood schools.”
    Two further examples in southwest Minneapolis also illustrate
the rebuilding power of stably integrated schools. Lake Harriet
upper campus (formerly Minneapolis Audubon) and Burroughs
Elementary, because of the effect of city-only desegregation,
became majority minority and poor schools. They, like all the
other resegregating schools, were losing white and middle-class
enrollment within their attendance areas. When the Minneapolis
School District resumed assigning students to neighborhood
schools, these schools’ boundaries were re-drawn so that their
white neighborhoods would contribute to no more than two-thirds
of their enrollment.
    In 2004, growing Lake Harriet Upper, with 11 percent poor
and 18 percent nonwhite students, averaged state test scores that
were higher than all but a handful of elementary across the
region.498 Moreover, because of the peculiarities in the state
funding formula, Lake Harriet Upper is one of the lowest-spending
schools in the metro area, compared with some schools in
Minneapolis spending much more with worse results.499 These
schools, while still integrated, could soon become all white,
unless—as in county-wide school systems like Raleigh—their
boundaries are adjusted to allow more children of color to attend,


      498 Minnesota Department of Education, “School Report Card: Lake Harriet
Upper,”                                                                           at
http://education.state.mn.us/ReportCard2005/schoolDistrictInfo.do?SCHOOL_NUM
=121&DISTRICT_NUM=0001&DISTRICT_TYPE=03; see also Norman Draper &
Steve Brandt, State’s Schools Meet the Test, STAR TRIB. (Minneapolis), April 2,
2005, at B4.
      499 Minnesota Department of Education, “School Report Card: Lake Harriet
Upper”,                                                                           at
http://education.state.mn.us/ReportCard2005/loadFinanceAction.do?SCHOOL_NU
M=121&DISTRICT_NUM=0001&DISTRICT_TYPE=03. Lake Harriet spends more
than the state average per building due to high special education and building
costs, but spends less than the state average on general education funds. Id.
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182                        Law and Inequality           [Vol. 24:__
and more integrated school opportunities are created throughout
the region.




Conclusion

      The threat of suburban segregation is real and imminent. In
the past fifteen years we have witnessed the “quiet reversal” of
many of the gains from Brown v. Board of Education. These
policies and the pessimistic belief that the law has nothing to say
about contemporary segregation contribute to the widening spatial
and socioeconomic gap between Whites and minorities in this
country. As Blacks and Latinos continue to migrate to suburban
communities, questions of segregation and resegregation become
vitally important to preserving integrated and balanced
communities. Funding remedies have proven inadequate in
buoying inner-city schools from the disastrous effects of
concentrated poverty.
      With so few remedies remaining to try to bring children out
of poor performing schools and the ill effects of urban poverty and
racial isolation, it is essential that we consider remedies that are
proven to work. Minnesota is known for being a progressive state.
Minnesota’s Republicans all supported civil rights in the 1960s.
Walter Mondale was a senior author and staunch advocate of the
Fair Housing Act. Hubert Humphrey, a pro-civil rights and
integrationist mayor from Minneapolis, led the charge to include
desegregation in the 1948 Democratic platform, helping encourage
the shift of Southern votes to the Republican Party.500 Minnesota
was also a pioneer of charter schools as an innovative solution to
failing, high-poverty schools; that reform has shown itself to be, in
some instances, a way for parents to have input on curriculum and
educational issues. Many charter schools in Minnesota have,
however, faced significant challenges to their viability as a result


  500. MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME
COURT AND THE STRUGGLE FOR RACIAL EQUALITY 190 (2004).
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2005]       Minneapolis Desegregation Settlement                        183
of financial mismanagement.501 Choice programs that permit poor
children to access high-achieving schools is not a panacea, but it is
the most promising new development in recent years.
      Sheff and Xiong provide examples that litigation can work to
further the goal of desegregation. In Sheff, litigation pushed the
legislature to provide a desegregation plan and adequate funding
to encourage desegregation.         Xiong created a well-funded
voluntary plan in the Twin Cities that has benefited 2000 children
so far. Integrating communities through wise housing policy also
promises to create high-functioning schools throughout the
metropolitan region. Plaintiffs and courts can advance the cause
of desegregation even further when they work to show that the
high level of racial and socioeconomic concentration in Minnesota
schools is not merely the result of personal preference, but is
instead the legacy of decades of discriminatory policies that have
created and maintained urban ghettos. Sheff and Xiong prove
there is no cause for pessimism and that school desegregation can
really happen.
     The examples and scenarios contemplated in this article show
that once cities in decline have stable, middle-class, and integrated
schools, demand and enrollment will increase. This strategy is
particularly likely to make a difference in parts of the city that
have comparatively affordable family housing.             Housing in
desirable school districts is rapidly becoming beyond the reach of
many middle-class families. Segregation and resegregation limit
the choices not only of nonwhite families, but also of white families
who want their children prepared to excel in a multi-cultural
world by attending stably integrated schools.
      If more comprehensive options are offered to students of color
to make gains against the achievement gap, then it will become
more likely that Minneapolis will be able to overcome the image of
failed schools and rebuild its reputation. It is in the interest of all
Minnesotans to begin the process today. Those who would oppose
offering the choice of educational opportunity to the poor must
have a reason to deny choice. Otherwise, they should stand aside.




  501. See PATRICIA ANDERSON, FINANCIAL TRENDS OF MINNESOTA SCHOOL
DISTRICTS AND CHARTER SCHOOLS 35-36 (2005).
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184                        Law and Inequality      [Vol. 24:__

								
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